dealing out to B. two gills of whis-[
key, and receiving therefor twenty
cents," &c.
moved to have been a part of the
realty......
.Ibid.
Construction of Statute.- Words.
The words "remove from" in this
section have not a technical mean-
ing authorizing, in such a case, the
implying of an averment that the
thing removed was a part of the
realty...
Ibid.
7. Forgery.-Indictment.-An indict-
ment for defacing and destroying a
promissory note, in which it is al-
leged, as an excuse for not setting
forth the tenor of the note, that it
was destroyed by the defendant,
must state its substance and effect.
Birdg v. The State..........
Held, that as it did not appear from
the information whether or not the
defendant had a license, it was bad
on motion in arrest based upon the
ground that it did not state facts
sufficient to constitute a public of-
fense.......
..Ibid.
3. Justice of the Peace.-Obstructing
Highway-Affidavit.- Prosecution
before a justice of the peace for ob-
structing a highway. The affidavit
charged, "that on or about, &c., at the
said county of Jefferson, in the State
of Indiana, one A. did unlawfully
obstruct a highway then and there
situate, being the highway running
nearly north and south through
section nine, town three, range eight
cast, from the Scaffold Lick and
Kent road to the Lexington and 9.
Paris road, in said county and State,
by then and there unlawfully erect-
ing fences across said highway, as
affiant is informed and believed."
Held, that the highway was sufficient-
ly described.
Held, also, that it was enough to charge
that the obstruction was within the
jurisdiction of the court, and not
necessary to state the particular
place where it was erected on the
road.
Held, also, that the fact that the charge
was made on information and belief
did not render the information de-
fective.
Ileld, also, that the mistake of the
draftsman in writing "believed,”
instead of believes, was immaterial.
The State v. Buxton........ .67
4. Indictment.-Where a statute in a
criminal case is not to be taken in
the broad meaning .of the words
used, but to be limited by construc-
tion to a special subject or matter,
it is proper that an indictment there-
under should not charge the crime
in the language of the statute sim-
ply, but should limit the case and
bring it within the construction
placed upon the statute. Bates v.
The State....
5. Same.-Trespass to Land.—An in-
dictment, under section 14, 2 G. &
H. 462, for removing a quantity of
valuable gravel from the land of an-
other, should show the property re-
Same.-An indictment for defacing
and destroying a promissory note
must show whether the note was
for the payment of money or prop-
erty......
Ibid.
Sunday. Work of Necessity-On
the trial of an information for a vi-
olation of the Sabbath, under the
act of 1855 (2 G. & H. 481), the ev-
idence showed that the defendant
was engaged on a certain Sunday
in gathering and boiling sugar-wa-
ter on his premises; that it was a
good day for the flowing of the wa-
ter; that his troughs were full and
running over; that he had no way
to save the water but by gathering
and boiling it.
Held, that this was a work of necessi-
ty within the statute. Morris v. The
State......
....189
Practice.-Motion in Arrest.-A
variance between the affidavit and
the information cannot be taken ad-
vantage of by motion in arrest. Ibid.
11. Indictment.-Obtaining Money Un-
der False Pretenses. Indictment
charging, that "A. and B., on, &c.,
at, &c., did, feloniously, designedly,
and with intent to defraud C., rep-
resent and pretend to said C. that a
certain bank check and order for
the payment of money (here set out
in hæc verba, purporting to be drawn
by D., payable to E., and indorsed
by the latter in blank), which the
said A. then had in his possession,
was good and of the value stated on
its face, to wit, cight hundred dol-
lars in currency; by means of which
false pretense said A. and B. did
then and there obtain from said C.
(certain money specified) the goods,
&c., of said C.; and the said A. and
B. then and there delivered said
check to said C., to be kept by him
as security for the payment of said
money by him loaned to said A. and
B., which was then and there ob-
tained from said C. as aforesaid by
them, with intent to cheat and de-
fraud him; whereas in truth, &c.,
said check was not good, was not of
the value of eight hundred dollars
in currency, but was of no value
whatever; all of which said A. and
B. then and there well knew, &c.
Held, that the indictment showed, not
merely a false promise, but a false
pretense as to an existing fact, and
was sufficient. Maley v. The State.192
12. Change of Venue.-Affidavits.—|
In a criminal action the defendant
moved for a change of venue on ac-
count of local excitement and prej-
udice, and filed affidavits in support
of the motion. Counter affidavits
were filed by the State; and there-
upon the defendant moved for leave
to file additional affidavits in sup-
port of the application, which the
court refused.
ruled the defendant's challenge "for
cause."
Held, that this ruling was correct. Ivid.
15. Dying Declarations.- When Ad-
mitted. Where the statements of a
person are offered in evidence as
his dying declarations, the proof
must clearly show that the declar-
ant was in fact at the very point of
death, and that he was fully con
scious of that fact, not as a thing of
surmise and conjecture or appre-
hension, but as a fixed and evitable
fact...
..Ibid.
Same. It is not required that the
deceased should have declared in
terms that he expected to die at
once, if his condition was such that,
of necessity, such an impression
must have existed on his mind. On
the other hand, no matter how strong
the expression of this certainty of
death may have been, if there be
any evidence of hope in the lan-
guage or actions of the declarant,
his statements will be rejected..Ibid.
17. Information. Uncertainty.-An
information in which the district
attorney charges the offense, "as he
verily believes," is bad on motion
to quash. Vannatta v. The State.210
signment of Errors.-In the assign-
ment of errors on an appeal by the
defendant in a criminal action, the
only errors assigned were, that the
finding was contrary to law, and to
the evidence given on the trial.
Ileld, that no question was properly
presented for the decision of this
court. Cavanaugh v. The State..229
19. Liquor Law.-Sunday.— Section
8 of the act to regulate the license
and sale of intoxicating liquors, &c.,
(1 G. & H. G16) as amended in 1865
(Spec. Sess.-197), prohibits the sale
on Sunday of any quantity of intoxi-
cating liquor by a licensed retailer,
and is not in conflict with the Con-
stitution of the State. Schlict v.
The State.....
Held, that as no additional affidavits
were offered by the defendant, no
question could be raised in the Su-18. Practice.- Supreme Court.-As-
preme Court upon this ruling. Mor-
gan v. The State.......
13. Same.-Judicial Discretion.- Que-
ry, whether the Supreme Court
ought, under any circumstances, to
reverse the ruling of a court refus-
ing to grant a change of venue where
the affidavit is founded upon excitc-
ment or prejudice in the county
against the defendant............. Ibid.
14. Juror.-Competency.-Previously
Formed Opinion.-On the examina-
tion of persons called as jurors to
try an indictment for murder, as to
their competency, certain ones of
the panel answered, that they had
formed opinions as to the guilt or
innocence of the defendant, from
rumor and newspaper statements on
that subject. Upon further exami-
nation each of said persons answered,
that it would require neither more
nor less evidence to satisfy him of
the existence or non-existence of the
material facts involved in the case
by reason of his so already formed
opinion. The court thereupon over-
20. Same.-Evidence.-On the trial of
an information under this section,
charging, that the defendant was
licensed under said act to sell intox-
icating liquors in a less quantity
than a quart at a time, it appeared
in evidence that the defendant, at
the time of the sale charged (the
fall of 1867), was engaged in the
sale of intoxicating liquors by the
"small;" and there were given in
evidence two orders of the board of
county commissioners, one made at
the December term, 1866, and the
other at the December term, 1867,
granting license to the defendant to
sell intoxicating liquors by retail.
Held, that this evidence did not show
that the defendant was licensed, and
was not sufficient to justify a finding
against him.........
.Ibid.
21. Continuance.-The fact that in a
joint prosecution upon information
a continuance is granted as to a part
of the defendants is no ground for
continuance as to another defend-
ant. White v. The State..........262
22. Evidence.- Alibi.-The fabrica-
tion of an alibi, like the wilful in-
troduction of false and fabricated
evidence in support of any other
ground of defense, is a circumstance
against the accused, to be weighed
by the jury in connection with all
the other evidence in the case; but
where the evidence tending to prove
an alibi is uncontradicted, and the
witnesses are unimpeached, and the
facts testified to are reasonable in
themselves, the failure of the de-
fendant to account for his where-
abouts during all the time within
which the offense was probably com-
mitted should not be taken as a cir-
cumstance tending to prove his
guilt.....
.Ibid.
23. Term of Imprisonment.—Where a
defendant was sentenced to an im-
prisonment in the county jail for
ninety days, and until a fine of one
dollar and the costs of the prosecu-
tion were paid or replevied;
Held, that when the imprisonment for
the ninety days had been completed,
that portion alone of the sentence
was discharged, and there remained
the imprisonment for the fine and
costs
that the defendant was not
entitled to a credit of fifty cents per
day upon the fine and costs from the
date when his imprisonment com-
menced. Ex Parte Tongate......370
24. Evidence.- Venue.-If in a crim-
inal case there be no evidence that
the offense charged was committed
within the jurisdiction of the court,
there should be an acquittal.
v. The State..........
25. Admissions on the Trial.-Bill of
Exceptions.--In a criminal case, the
court, in its instructions, told the
jury, that the defendant had, during
the progress of the trial, admitted
certain important facts, and that the
facts thus admitted must be taken
as if proved beyond a reasonable
doubt. A bill of exceptions, pur-
porting to contain all the evidence,
was silent as to such admissions
having been made.
Held, that, as the record stood, there
was no warrant for this statement
of the court...
....Ibid.
26. Jury.—Instructions to.—Right of
to Determine the Law.-The court in
such case also instructed the jury,
that it was their duty to apply the
law, as given by the court, to the
facts of the case; that they might
determine the law for themselves,
however; but that they should be
well satisfied in their own minds of
the incorrectness of the law as giv
en by the court before assuming the
responsibility of determining it for
themselves.
Held, that this was error............ Ibid.
27. Same.-Irrelevant Instructions.—
Instructions to the jury should be
applicable to the evidence....... Ibid.
Presumption. Use of Deadly
Weapon.-- Contradictory Instruc-
tions. The intent to murder is not
conclusively inferred from the delib-
erate use of a deadly weapon; and
the error of giving au instruction to
the jury to that effect on the trial
of an indictment for murder, at the
instance of the prosecution, is not
cured by giving a contradictory and
correct charge upon that subject at
the request of the defendant... Ibid.
29. Apparently Conflicting Instruc
tions. In a criminal case, the court,
instead of giving to the jury instruc-
tions which are apparently conflict-
ing, though not so intended, and
leaving the jury to conjecture which
of them should be applied to a given
state of facts, should generally tell
the jury the state of facts to which
the proposition of law announced is
applicable......
.Ibid.
Insanity.-Where a person is
moved to the commission of an un-
lawful act by an insane impulse con-
trolling his will and his judgment,
he is not guilty of a crime; and if
he is a monomaniac on any subject,
it is wholly immaterial upon what
subject, so that the insane impulse
leads to the commission of the act.
Stevens v. The State......... .485
31.--Same.-Knowledge of Right and
Wrong. On the trial of an indict-
ment for murder in the first degree,
the court instructed the jury, that if |
they believed from the evidence
"that the defendant knew the dif-
ference between right and wrong in
respect to the act in question, if he
was conscious that such act was one
which he ought not to do, and if
that act was at the same time con-
trary to the law of the State, then
he is responsible for his acts."
Held, that this is not law........... Ibid.
32. Same. So far as a person acts
under the influence of mental dis-
case he is not criminally account-
able; and the jury in a criminal
case must be satisfied beyond a rea-
sonable doubt of the defendant's
mental capacity to commit the crime
charged.
........Ibid.
33. Instructions to Jury.--Conflict of.
An erroneous instruction to the jury
in a criminal case cannot be cor-
rected by another instruction which
states the law accurately, unless the
crroneous instruction be thereby
plainly withdrawn from the jury.
Bradley v. The State...............492
24. Same.-Extracts from Books.-
The law which goes to the jury from
the court should be given as law,
unquestioned by authorities extract-
ed from books.....
...Ibid.
35. Reasonable Doubt.-A juror in a
criminal case ought not to condemn
unless the evidence excludes from
his mind all reasonable doubt as to
the guilt of the accused-that is,
unless he is so convinced by the
evidence, no matter what the class
of the evidence, of the defendant's
guilt, that a prudent man would
feel safe to act upon that conviction
in matters of the highest concern
and importance to his own dearest
personal interests, under circumstan-
ces where there was no compulsion
resting upon him to act at all. Ar-
nold v. The State, 23 Ind. 170, cx-
plained....
.Ibid.
36. Same.--On the trial of an indict-
ment for murder in the first degree
the court instructed the jury, in ef-
fect, that if the evidence satisfied
them of the guilt of the defendant
with such certainty that a prudent
man would feel safe in acting upon
such conviction in his own import-
ant affairs, then, in such case, there
would be no reasonable doubt of the
defendant's guilt.
Held, that this test was too nar-
.......... Ibid.
37. Insanity. The defendant in a
criminal case is not required to
prove his insanity in order to avail
himself of that defense, but merely
to create a reasonable doubt on this
point, whereupon the burden of
proving his sanity falls upon the
state
..Ibid.
Same.-Cognitive and Conative
Faculties. Insanity is a disease
which may impair or totally destroy
either the understanding or the will,
or both; and in a criminal case all
symptoms of such disease and its
effect upon these faculties should go
to the jury, and they must deter-
mine, as a matter of fact, the men-
tal condition of the defendant; and
an instruction to them which limits
their inquiry to the condition of the
power to apprehend by the under-
standing is erroneous..
..Ibid.
ant or others for him, the defendant |
being a stranger to such witness,
was disapproved...................... .....Ibid.
Homicide.- Malice.- Purpose to
Kill-Manslaughter. Although a
person unlawfully and purposely kill
a human being, yet if it be done in
a sudden heat of passion, caused by
a sufficient provocation, and in the
absence of express malice, then mal- |
ice will not be implied from the act,
but the offense will be manslaugh-
ter. Murphy v. The State.........511
44. Samc.-Provocation by Words.-
Words only, however abusive and
insulting they may be, cannot con-
stitute such sufficient provocation to
rebut the presumption of malice
arising from the act, in such a case,
and reduce the offense from murder
to manslaughter.................... Ibid.
45. Sime.-Deadly Weapon.-If the
act be perpetrated with a deadly
weapon, so used as likely to produce
death, the purpose to kill may be
inferred from the act........... Ibid.
46. Same.- Words.-Definition of-
Statute Construed.-The word "vol-
untarily," in our statutory definition
of manslaughter, means, by the free
exercise of the will, done by design,
purposely.........
....Ibid.
Same.-Instruction to Jury.-On
the trial of an indictment for assault
and battery with intent to murder,
the court instructed the jury, in cf-
feet, that there can be no purpose to
kill in manslaughter; and that if
such a purpose be shown to exist,
and if death result, the killing is
murder.
Held, that this was error.. ..Ibid.
48. False Pretenses.- Statute Con-
strued. The statute 2 G. & II. 445,
scc. 27, does not require, as an ele-
ment of the offense thereby defined,
that the false representation should
be made for the purpose of accom-
plishing the particular thing which
does result. A false pretense such
as would tend to produce the result
accomplished, an obtaining thereby,
and designedly, a thing of value
from another, and an intention by
the transaction to defraud that oth-
er, are the only clements of the of-
fense. Todd v. The State..........514
49. Same.-Indictment.-If a particu-
lar result is designed to be accom-
plished by making the false pretense,
which however fails, and another
thing of value is obtained and ac-
cepted with like intent to defraud,
the law imputes to the person mak-
ing the false pretense a design from
the beginning to consummate the
latter result; and under our criminal
code this conclusion of law from the
facts need not be alleged in the in-
dictment, if the facts are alleged
from which it inevitably results. Ibid.
50. Same.-Indictment against T. for
obtaining money and a signature as
surety by false pretenses, charging
that the defendant, "on, &c., at, &c.,
feloniously, designedly, and with in-
tent to defraud one G., did falsely
pretend to said G., that he, said T.,
was then and there the owner of a
certain house and lot in a town
named, in an adjoining state named,
of great value, to wit, twenty-six
hundred dollars, and a certain har-
ness-shop, in another town named,
in said adjoining state named, of
great value, to wit, six hundred and
fifty dollars; by means of which false
pretenses, the said G. relying upon
and believing the same to be true,
said T. did then and there felonious-
ly obtain from said G., on his, said
T.'s, sole and individual credit, the
sum of four hundred dollars, lawful
money, as a loan for nine months,
and the signature of said G. &c., &c.,
with intent then and there to de-
fraud said G.; whereas, in truth, said
T. was not then and there the own-
er," &c., &c.
Held, that the indictment was not
double.
Held, also, that though it was not al-
leged expressly that in making the
representations the defendant's in-
tention was to accomplish the par-
ticular result which was in fact ob-
tained-though the indictment was
not so certain as to exclude the con-
clusion that the defendant may have
designed to accomplish his fraudu-
lent purpose in another mode---yet
it sufficiently showed a connection
between the false representations
made and the result produced..Ibid.
51. Same.-Evidence.-It was not nec-
essary to prove all the pretenses
charged in the indictment.......Ibid.
Same.-Similar Representations to
Others. The State was allowed,
over defendant's objection, to put in
|