Deloohery v. State

27 Ind. 521 | Ind. | 1867

Elliott, C. J.

This was a proceeding under the statute, in the name of the State, on complaint of Dilks, against Deloohery, the appellant, for surety of the peace, commenced before a justice of the peace. The affidavit alleged that the relator had cause to fear, and did fear, that Deloohery would injure his property or his person by violence. The justice found that Dilks had cause to fear that Deloohery would injure his person, and thereupon required the latter to enter into a recognizance for his appearance in the Court of Common Pleas of said county, on the first day of the succeeding term, &c. In the latter court,'the defendant moved to dismiss the proceedings, which motion the court overruled, to which the defendant excepted. - The case was then submitted to the court for trial without a jury, and the court found that the complaining witness had just cause to entertain the fears expressed in his affidavit, and thereupon required the defendant to enter into a recognizance in the sum of flOO, to keep the peace for the period of six months, and gave judgment against him for costs.

The appellant moved to dismiss the case in the court below, because no revenue stamp was attached to any of the papers. The court did right in overruling the motion, for the reason that no such stamp was required by the act of Congress.

The defendant offered himself as a witness in his own ■ behalf, "on the trial in the Court of Common Pleas, but the court refused to permit him to testify, to which he excepted and assigned the ruling for error. The statute makes the parties to “ any civil cause or proceeding ” competent witnesses to testify in their own behalf. 2 G. & H., 168. In Murray v. The State, 26 Ind. 141, we held that a prosecution, under the statute, for surety of the peace, was a criminal proceeding, to prevent the commission of crime. A party to a suit was not a competent witness therein for himself, at common law. Ajad as the State has only removed the disability in civil causes and proceedings, and not in criminal ones, the latter are still governed by the common law rule. 1 It follows, that the defendant was not a competent witness for himself, and the court did not err in refusing to permit him to testify.

0. B. JETord and G. Ewing, for appellant. J. Gavin and G. B. Grydon, for appellee.

The judgment is affirmed, with costs.