28 Ind. 310 | Ind. | 1867
— Martin was indicted in the Washington Circuit Court for an assault with intent to murder.
The case was transferred, on a change of venue, to the
The evidence is before us, and we do not think it sustains-the finding of the jury. True, Heffren, the prosecuting witness, testified that he was standing on the corner of a street in Salem, when the defendant came up to within six feet of him, and, without a word being said By either party, or an act being done by the witness to provoke an assault, drew a pistol and fired at him, when, in self defense, he advanced on the defendant, but without a weapon of any kind, and forced him back, and threw or knocked him. into a cellar, the door of which was open. But these statements were directly contradicted, in every essential particular, by two other witnesses who were immediately present. They both testified that the prosecuting witness was standing on the corner of the street, within a few feet of DuclaoaWs store, when Martin came up; and, when he was just about to pass between the prosecuting witness and the store, Heffren, without any provocation, or a word being said by either, suddenly drew and struck at him with, as one of them testified, “ brass knucks ”; that Martin threw up a cane and partially warded off the blow, which struck the cane, and, also, Martin’s face; that Martin thereupon retreated, using the cane before his face to ward off the blows of Heffren, who was following him up, when Martin drew a pistol and fired at, but missed Heffren; Martin still continued to retreat in the same manner, being closely pursued by Heffren, until he fell backward into the cellar. One of these witnesses testified that he distinctly saw something in Heffren’s hand, which he took to be “brass knucks”; that the blow so sounded on the cane, and he saw a mark on the cane, immediately afterwards,
The jury are the proper judges of the facts and of the credit that should be given to the witnesses, and where
Such, we think, is the effect of the evidence in the case before us. Besides, it is evident that the jury did not credit Heffren’s statements, for they acquitted Martin of the intent to murder, which was clearly made out by Heffren’s testimony. How, then, they could have stopped short of an entire acquittal, without wholly and arbitrarily disregarding the testimony of all the other witnesses, it is impossible to conceive. ■
Judicial proceedings cannot be converted into a mockery. To say that, beyond a reasonable doubt, the defendant was guilty of an unlawful assault, in such a state of case, would be simply absurd, and to hesitate in ordering a new trial would be a plain disregard of the rights of the citizen.
The judgment is reversed, with costs, and the cause remanded for a new trial.