35 Ind. 379 | Ind. | 1871
Ephraim Dougherty filed his affidavit for surety of the peace against the appellee before a justice, on which such proceedings were had as that the cause went to the court of common pleas, where it was tried by a jury, who returned the following verdict and answers to questions propounded to them, viz.:
1st. “Did the complaining witness have just cause to entertain his fears expressed in his affidavit (so far as the same relates to the defendant), at the time he made and filed his affidavit with the justice of the peace?” Answer. “Yes.”
2d. “Has the complaining witness just cause to entertain his fears, expressed in his affidavit (so far as relates to the defendant), at this time ?” Answer. “No.”
“We, the jury, find that the complaining witness, Ephraim Dougherty, has not just cause to entertain his fears, expressed in his affidavit, at this time.”
Upon this verdict the court discharged the defendant, and rendered judgment against Dougherty for the costs in the case. Dougherty excepted.
We are of opinion that the action of the court was erroneous. Under the statute regulating proceedings for surety of the peace (2 G. & H. 640), we think if a party applying for such surety has, at the time he makes and files his affidavit with, the justice for that purpose, just cause to fear,
If, on the final trial, it appears that, although there was just cause for entertaining the fears alleged and for the institution of the proceedings, yet that circumstances have intervened that render the fears groundless at the time of the final trial, this may well be considered by the court in determining the time and the amount of the recognizance to be entered into by the defendant for keeping the peace in future; but it does not entitle the defendant to be unconditionally discharged at the costs of the prosecuting witness.
The judgment below is reversed, with costs, and the cause remanded, with instructions to the court below to render judgment in accordance with this opinion.