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May Term, 1855.

WOODWARD

V.

WOODWARD V. THE STATE.

THE STATE. A negro is competent to testify, under the act of 1853, on the trial of a criminal charge against a negro.

Saturday, June 16.

APPEAL from the Hendricks Circuit Court.

Per Curiam.-Woodward was indicted for an assault and battery with intent to murder. He is a colored man, and the assault and battery charged was upon a white man. On his trial he offered a colored man as a witness in his behalf, but the Court refused to hear the witness testify.

The statute on the subject is as follows:

"No Indian, or person having one-eighth or more of negro blood, shall be permitted to testify as a witness in any cause in which any white person is a party in interest.” Laws of 1853, p. 60.

The question is, is a person upon whom a crime has been committed, in any sense a party in the cause prosecuted by the state against the criminal? If so, neither the state nor the defendant can call, in such cases, a colored witness, for the exclusion is general as to all parties. Is the interest contemplated a pecuniary or legal interest, or one of feeling merely? Suppose, in this case, the person assaulted had been actually killed, and Woodward had been on trial for murder, instead of the attempt to murder, would the dead man or his representatives have been a party or parties, in the statutory sense? If not, shall the negro have the benefit of testimony when he succeeds in killing, but not when he stops short of that point?

We do not think the state was contemplated as a person of any particular color by the statute. We think the Court erred in rejecting the witness.

The judgment is reversed. Cause remanded, &c.
J. L. Ketcham, for the appellant.

D. C. Chipman and J. W. Gordon, for the state.

SLAUGHTER V. KIMBLE.

APPEAL from the Franklin Court of Common Pleas.

Per Curiam.-This case turns upon the weight of evidence, as to whether a sale of a lot of wheat had taken place. It depended upon what really were the terms of a parol agreement, subsequent notice, reasonable time, &c. We can not say the finding upon the evidence was clearly wrong.

The judgment is affirmed with costs.

J. D. Howland, for the appellant.

J. Ryman, for the appellee.

May Term, 1855.

KENT

V.

SPEARS.

Saturday,
June 16.

KENT V. SPEARS and Others.

ERROR to the Warren Circuit Court.

Per Curiam.-Assumpsit for a fraction over 94 dollars, upon a written instrument. Pleas, non assumpsit, payment, set-off, &c. Issues of fact under which the case was fully triable. Trial and judgment for the plaintiff. No motion for a new trial. No questions on the admission or rejection of evidence. There is no question before this Court.

The judgment is affirmed, with 10 per cent. damages and costs.

R. A. Chandler, for the plaintiff.
B. F. Gregory, for the defendants.

Saturday,
June 16.

May Term, 1855.

ADDLEMAN

V.

ERWIN.

Monday,
June 18.

CARTER V. MCCLELLAND.

APPEAL from the Morgan Circuit Court.

Per Curiam.-This case is on the weight of evidence. One party agreed to pay the other certain sums, when certain work on a house was done by the other. Suit for

the money. Controversy about the work and whether done. The party appears to have accepted it. A compromise as to it had taken place, &c. The jury might infer the right to recover.

We can not disturb their finding.

The maker of the note assigned was perfectly worthless, and not worth suing.

The judgment is affirmed, with 1 per cent. damages and costs.

W. R. Harrison, for the appellant.

J. W. Gordon, for the appellee.

Monday,
June 18.

ADDLEMAN V. ERWIN and Another, Administrators.

In a cause tried since the R. S. 1852 took effect, a motion for a new trial, which is not in writing, can not be noticed.

Where the issues of fact in a cause are submitted to the Court for trial, either party may require the Court to make a special statement of the facts and the questions of law decided thereon; and by then excepting to the decision, such party may properly prepare the case for review in the Supreme Court.

APPEAL from the Wayne Court of Common Pleas. Per Curiam.-Assumpsit by Addleman against Erwin and others, for money paid, &c. Demand denied. Trial by the Court and judgment for the defendants. The trial was in 1854, under the new practice. No evidence offered was rejected, and none given was excepted to.

1855.

EVERETT

V.

A motion for a new trial was made, but not being in May Term, writing, it could not be noticed. McKinney v. Springer, ante, p. 453. Another course might have been pursued to get the questions made below before this Court. The THE STATE. party might have required the Court to make a special statement of the facts and the questions of law decided thereon, and then excepted to the decision, and thus prepared the case for this Court. 2 R. S., 115, s. 341. This was not done, and the record presents no question for our consideration.

The judgment is affirmed with costs.

J. Perry, for the appellant.

W. A. Bickle, for the appellees.

EVERETT V. THE STATE.

When several persons are jointly indicted, but separately tried, either, if he consents, is competent to testify on behalf of the other.

APPEAL from the Marion Circuit Court.

GOOKINS, J.-The appellant was indicted jointly with James Broughard and William Hinesley, for burglary. He was separately tried and convicted at the December term, 1854, of the Marion Circuit Court.

On the trial he offered as a witness in his behalf Hinesley, who was indicted with him, who had not been convicted, and who consented to testify on behalf of Everett. He was objected to by the state as incompetent, and his testimony was excluded, for the reason assigned.

The statute regulating practice in civil suits has this provision: "No person offered as a witness shall be excluded from giving evidence in any judicial proceeding, by reason of incapacity from crime or interest; but this sec

Saturday, July 14.

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May Term, tion shall not render competent a party to an action," &c.
1855.
2 R. S. 1852, p. 80, s. 238.

THE GOVER

NOR
V.

NELSON.

The statute regulating the practice in criminal cases, has the following section: "The following persons are competent witnesses: 1st. All persons who are competent to testify in civil actions. 2d. The party injured by the offence committed. 3d. Accomplices, when they consent to testify." 2 R. S. 1852, 372, s. 90.

It is also provided, that "when two or more defendants are indicted jointly, any defendant requiring it must be tried separately;" id., 375, s. 105; and when tried jointly, a defendant against whom sufficient evidence does not appear to put him on his defence, may be discharged by the Court, for the purpose of giving testimony for his codefendant.

Under these statutes, we think Hinesley was a competent witness. If he could have been excluded at all, it was because he was a party to the suit; but as the right to a separate trial is absolute, when the defendants sever, it is as much a separate suit, in respect to each, as if they were separately indicted. The 105th section does not apply to the case; that refers to joint trials.

Per Curiam.-The judgment is reversed. manded, &c.

Cause re

R. L. Walpole, D. Wallace and T. D. Walpole, for the appellant.

D. C. Chipman and J. W. Gordon, for the state.

THE GOVERNOR v. NELSON.

A clerk of the Circuit Court elected to supply a vacancy, under the constitution of 1851, holds his office for the full term of four years from the period of his election.

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