the defendant guilty in manner and form as he stands May Term, 1855. charged." This evidently refers to the specific charge contained in the indictment. Of what, then, does he stand CHRISMAN charged? Why, of murder in the first degree. There is, indeed, no ground of objection to the verdict. Per Curiam.-The judgment is affirmed with costs. T. D. Walpole, R. L. Walpole and R. A. Riley, for the appellant. D. S. Gooding, for the state. V. MELNE. CHRISMAN and Others v. MELNE. A plea rejected on motion is no part of the record unless made so by bill of exceptions. If in a suit tried on the general issue, a judgment has been rendered for the plaintiff, the judgment will not be reversed merely because a demurrer to a special plea was erroneously sustained, if the matter specially pleaded was admissible evidence under the general issue. A motion in arrest of judgment is in effect an admission that the verdict is in accordance with the weight of evidence, and when it precedes a motion for a new trial, the latter motion is unavailing. ERROR to the Marion Court of Common Pleas. DAVISON, J.-Assumpsit by George Melne, the indorsee of Elijah Tyner, against William Chrisman and others, parties to a bill of exchange. The bill, which is dated August 23, 1848, was drawn by Chrisman in favor of James Leary, for 600 dollars, payable in one hundred and twenty days, at the office of the Ohio Life Insurance and Trust Company, Cincinnati, accepted by Banner Lawhead, and indorsed by Leary and Tyner. Chrisman and Leary were defaulted; but Lawhead and Tyner appeared. Lawhead pleaded the general issue, and Tyner the general issue and five special pleas. No question has been raised as to the third, fourth and sixth pleas. They will not, therefore, be further noticed. Friday, May Term, 1855. V. The second plea is copied in the transcript. In form it is a plea of non-assignment, and is said to have been CHRISMAN rejected on the plaintiff's motion; but no exception was taken to the ruling of the Court; and "a plea rejected on motion is no part of the record, unless made so by a bill of exceptions." Henderson v. Reed, 1 Blackf. 347. Hence the second plea is not properly before us. MELNE. The fifth plea avers, that the bill sued on was, on the 20th of January, 1849, the property of the branch bank at Indianapolis; that Tyner, on that day, fully paid to said branch the principal, interest and costs then due on said bill; and that afterwards, on the same day, the plaintiff obtained possession of it by fraud, without consideration, &c. To this plea a demurrer was sustained. We perceive no ground in support of this decision. Still the error in sustaining the demurrer is no cause for reversing the judgment. The evidence admissible under that plea was also admissible under the general issue. The cause has been tried under the general issue, and the defendant has had an opportunity to introduce the same evidence which he could have introduced under the fifth plea. The decision of the Court did not, therefore, injure him, and he can not complain of it. Shanklin v. Cooper, 8 Blackf. 41.-Cohee v. Cooper, id. 115. The cause was submitted to the Court for trial, and the Court found for the plaintiff 706 dollars. The record contains a bill of exceptions, which professes to set out all the evidence given on the trial, and avers that upon the finding of the Court the defendants moved in arrest of judgment and for a new trial, which motions the Court overruled, and rendered judgment, &c. We have repeatedly decided that a motion in arrest is in effect an admission that the verdict is in accordance with the weight of evidence; and when it precedes a motion for a new trial, the latter motion is not available. Rogers v. Maxwell, 4 Ind. R. 243.-Bepley v. The State, id. 264.-Sherry v. Ewell, id. 652.-Tuberril v. Stamp, 2 Salk. 647.-1 Sellon Pr. 505.-Steph. Pl. 126.-2 Ind. R. 117. There being no sufficient cause for the motion in arrest, May Term, the judgment must be affirmed. 1855. Per Curiam.-The judgment is affirmed with costs. ESTEP V. MORTON. ESTEP V. MORTON. A recoupment of damages was not allowed, under the former practice, in the absence of a plea, counter-claim, or notice to the adverse party showing the intention to recoup. ERROR to the Wayne Court of Common Pleas. PERKINS, J.-Morton sued Estep for the value of certain timber trees, and recovered in a trial upon the general issue. On the trial in the Common Pleas Court, Estep proposed to show that he had taken the trees sued for under a special contract by which he was to have had a larger number; that he was prevented by the plaintiff from taking them, and had thereby sustained damage, the amount of which he offered to prove and recoup from the plaintiff's demand. The Court refused to permit him to recoup his damage, on the ground that he had placed upon the record no plea, counter-claim, or notice entitling him to do so. The case was tried under the old system of practice. We think the Court did right. In these cases it is proper that the record of the pleadings should show what was litigated between parties, for their protection in subsequent suits. Under the new code a counter-claim would be necessary. It is also objected that the evidence does not support the judgment. We think it tends to support it. Friday, May Term, 1855. MURPHY V. THE STATE. Per Curiam.-The judgment is affirmed with costs. J. S. Newman and J. P. Siddall, for the defendant. Friday, MURPHY V. THE STATE. The prisoner, indicted for arson in the Marion Circuit Court, applied for a continuance of the cause, to procure the testimony of a witness residing in Cincinnati to his good character. Twenty-one days had elapsed between the period of the prisoner's arrest under the indictment and the application for the continuance, and he had meanwhile made no effort to obtain the testimony. There is a communication, twice a day, between Indianapolis, the county-seat of Marion county, and Cincinnati, by railroad. Held, that the application was properly refused. The Court is charged with the duty of giving the law to the jury in criminal as well as in civil cases, though in the former the jury are the judges of the law and the fact. It is not error for the Court, on the trial of a criminal prosecution, to refuse to permit counsel to read from law books in their argument to the jury. After the conviction of a prisoner for arson, in setting fire to a building in Indianapolis, he moved for a new trial, to enable him to prove an alibi by one A., who had not been examined as a witness. The affidavit stated that the prisoner had slept with A., on the night the building was burned, in Indianapolis, &c. It admitted that the prisoner remembered the fact distinctly before the trial, but alleged that he had forgotten A.'s name, and had, therefore, made no effort to obtain his testimony. Held, that the Court correctly overruled the motion. APPEAL from the Marion Circuit Court. PERKINS, J.-Prosecution for arson. Conviction, fine, and sentence to the state prison. Three errors are assigned: 1. In refusing to continue the cause. 2. In refusing to permit counsel to read from law books in their argument. 3. In refusing to grant a new trial. 1. The continuance was asked to obtain the testimony of bishop Purcell and others to the good character of the 1855. MURPHY V. defendant. No effort had been made to obtain it, though May Term, there had been time enough for the accomplishment of the object between the arrest under the indictment and the trial. From three to four hours, by bi-daily conveyances, THE STATE. puts the citizen here in communication with Cincinnati, the residence of bishop Purcell and the other witnesses named. The defendant had had twenty-one days. 2. The Court is charged with the duty of giving the law to the jury in criminal as well as in civil cases, though in the former the jury are the judges of the law and the fact. Carter v. The State, 2 Ind. R. 617. The Court would not be bound to sit and hear counsel read all the numerous treatises on criminal law to the jury; and if not all, why any? Where should the Court stop? 3. The new trial was asked to enable the defendant to prove an alibi by the testimony of one Huston, who had not been examined on the trial had. The affidavit states that the defendant slept with Huston the night the building in question in the case was burned, at what appears to be Huston's boarding-house, in the southern part of the city of Indianapolis. He admits that he knew and remembered the fact distinctly before the trial that had taken place, but had forgotten Huston's name, and, hence, made no effort to obtain his testimony. It would seem to have been a very easy matter to have ascertained the name, through his counsel or some of the bailiffs, by a few minutes' walk, or by sending to the boarding-house. The excuse does not appear sufficient. Per Curiam.-The judgment is affirmed with costs. T. D. Walpole, R. L. Walpole and D. Wallace, for the appellant. J. W. Gordon, for the state. |