Wheeler v. State

• Decision Date: 26 November 1856
• Parties: Wheeler v. The State
• Court: Indiana Supreme Court

8 Ind. 105

Wheeler v. The State

Supreme Court of Indiana

November 26, 1856

From the Allen Circuit Court.

The judgment is reversed.

D. H Colerick, for appellant.

J. W Gordon and D. C. Chipman, for State.

OPINION

Gookins J.

The appellant was indicted in the Allen Circuit Court for the murder of Charles Chandler. The indictment charges the killing to have been by throwing the deceased upon the ground, and beating and kicking him. Wheeler was tried and convicted of manslaughter, and sentenced to the State's prison for four years and six months.

Before proceeding to the trial, which occurred at the same term at which the indictment was found, the defendant made an affidavit on which he moved for a continuance of the cause. The affidavit set forth, that he was a stranger in that county; that, until said charge, he had enjoyed at all times a fair name and credit among and with all to whom he was known, wherever he had lived, for an honest, peaceable, and law-abiding man; that he had been engaged and employed on a boat on the canal the last year, and at the time the supposed crime was committed, about the close of navigation. The affidavit then details with great particularity his arrival at Fort Wayne upon a canal boat, and his stopping at that place; that immediately upon his landing, a quarrel occurred on another boat lying at the wharf, between the deceased and a person named Green, which was broken off, and again renewed; that the subject of the quarrel was a breast-pin which Chandler charged Green with having, or losing; that one Cartright finally succeeded in pacifying Chandler, after which, while Cartright and the defendant were standing apart from the crowd conversing upon a matter of business, it being dark, Chandler came to them and renewed the conversation concerning the breast-pin; that the defendant then, for the first time, spoke to Chandler, and said to him in a mild manner and tone, "There has been enough said about that breast-pin," when Chandler replied in a very insulting and menacing manner and attitude, "It is none of your business, you God damned son of a bitch," when he instantly shoved the said Chandler with his hand, and kicked him twice in the back, without any intention to injure said Chandler, who was a stranger to him; that said kicks were not given with more force than a boy of fourteen years of age might give; that he could only prove by said Cart right the said provoking words and attitude of said Chandler, that his counsel advised him it would be unsafe for him to go into the trial without the testimony of Cartright, who was then in Cincinnati, Ohio, and whose testimony he expected he could have by the next term; that he had lived at and about Dayton and Cincinnati for years; that he could prove his general character to be that of a peaceable, truthful, honest, and law-abiding man, by Thomas Ross and James Duncan, of Dayton by Edward Hughes, and John Draper, of Cincinnati, and other gentlemen, of equal respectability, in and about said cities, as well as by George B. Walker, of Logansport, Captain Dale, of Lafayette, and Thomas McCarty, of Lagro, in this State, in all of whose employ he had been, and who knew him well--all of which evidence he expected to have by the next term; that being a stranger at the place of trial he could not have the benefit of his said character on said trial, and could not prove his said character, if compelled to go into trial at that term; that he had used all the diligence he could to be ready for trial, and that he asked a continuance not for delay, but for the furtherance of...