This was a prosecution by the State, upon the relation of Prall, against Steward, for surety of the peace, on appeal from a justice of the peace.
Trial by jury, verdict and judgment for the defendant.
The court gave the jury the following charge: “ If you find the prosecuting witness has just cause to fear, I must hold him for the peace hereafter, and imprison him in default of bail. It is my conclusion, therefore, that you are to find whether prosecuting witness now has such cause. I think, therefore, the question is, is it now necessary to require this for the protection of prosecuting witness?” This instruction-was wrong.
In the case of The State, ex rel. Dougherty, v. Sayer, 35 Ind. 379, this court held, that the question in such cases was whether the prosecuting witness had just cause to fear at the time of the institution of the proceedings: The question arising upon the instruction given is duly presented by the record. The motion for a new trial should have prevailed.