Miller et al., Dodd v. (eight cases), 433 Price, Martindale et al. v....... 529 Piper, Creighton et al. ex rel. Farras v.. 182 203 Port, Williams v....... 569 486 378 115 Mosher v. The State, Miller et al., Helton et al. v.. Miller et al., Lambdin v.... Miller et al. v. Blackburn,. Mitchell et al. v. Dibble et al., Morrison v. The Eaton, &c., Railroad Morris v. Stewart et al.,. Murphy, Davis v. Mussleman, Wade v. LAW SCRO 420 432 589 LIBRARY 232 217 315 52 296 195 366 396 380 418 State v. Ely,.... 291 459 State v. Farley et al., 23 413 State v. Gartrell, 280 185 403 374 430 426 302 Weatherman, Hays v. Weddle, Bales v..... 228 Wolf, Maulsby v... 457 449 Woodford v. Leavenworth, 311 572 Worthington, Hanes v.. 320 Weasner, The Board of Comm'rs, &c., v. 191 Wright v. Schneider, Weaver, McDaniel y.. 527 Wheeler v. The State, White v. Wiley, Wiley, White v.... Wilkerson et al. v. Chadd, CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF INDIANA, AT INDIANAPOLIS, NOVEMBER TERM, 1859, IN THE FORTY- LOFTON V. THE STATE. APPEAL from the Washington Circuit Court. Per Curiam.-Indictment against the appellant for the murder of one John Vogles. Trial, conviction of manslaughter, and judgment over a motion for a new trial. On the calling of the cause for trial, the defendant filed an affidavit for a continuance. The affidavit seems to contain all the requirements of the law, and states, in substance, that he could not go to a trial at that term on account of the absence of one Margaret Ann Brown, who had, at the previous term, been duly recognized to appear as a witness at that term, but who, from sickness, was unable to attend; that he could prove by said Margaret the following facts: "That he was going peaceably along the public highway, without making any hostile demonstration whatever, when the deceased, John Vogles, commenced a violent assault upon him, and that the defendant told the VOL. XIV.-1 Saturday, V. Nov. Term, deceased, in a friendly manner, not to strike him, and affi1859. ant receded from the deceased, and did not strike nor offer CHENOWITH to strike him until after the deceased seized the affiant and CHENOWITH. Commenced beating and kicking him with considerable violence; that as soon as affiant could release himself, he desisted from defending himself and retreated; that it was during the time that he was so beaten, seized, and kicked as aforesaid by the deceased, that affiant struck the blow which is charged to have caused the death of the deceased, John Vogles." The affidavit states that the facts thus set out are true, and that he cannot prove them by any other witness whose testimony can be as readily procured, and that the affidavit was not made for delay merely, &c. The affidavit of the husband of the witness was also filed, showing her inability to attend on account of sickness. We are of opinion that the facts thus set up were material to the defense of the accused, and, therefore, that the continuance should have been granted. The judgment is reversed, and the cause remanded. C. L. Dunham, W. T. Otto, and H. Heffren, for the appellant. Saturday, December 24. CHENOWITH V. CHENOWITH. If a feme covert obtains a divorce and alimony, she has no interest, as survivor, in the estate of the husband. APPEAL from the Boone Circuit Court. HANNA, J.-Application for divorce, which was granted on account of the misconduct of the husband. The custody of the offspring of the marriage, one child, was decreed to the wife, and 1,000 dollars alimony [allowed her], to be paid in installments, if security should be given; if not, execution to issue, &c. It is insisted that the amount of alimony awarded is |
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