Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1862-06-16
The Supreme Court OF Indiana--Cases
Decided.


TWELFTH DAY.
joseph @. Silver vs. Cyrus s. Burgan ct al
Wells C. G.. Dismissed.
Caroline Gilbert Executrix VS. Plauh-Elk-
hart G. p. Reversed.
Richard Green vs. Joseph s. White-Cass G..
O.. Affirmed with Eve per cent damages.
Edward A. Jocelyn VS. Melinda Biddinger-
Decatur c.. @. Affirmed.
David Engler ct al VS. Daniel Davis-Shelby
G. p. Reversed.
George W. Lane VS. William s. Holman ct al
-Deaborn @. O.. Affirmed.
Peter Woodfeld ct al VS. Thomas Barbee-
Tippecanoe G. p. Affirmed with one per cent.
Lewis r. Sharpe VS. Stephen Jones-Howard
G. P. Affirmed with FIVE per cent damages.
William D.. Stancliff VS. Judson Palmetter-
Noble G. c.. Reversed.
Samuel F. Mayus VS.. Benjamin s.. Wheeler
Warren g. G. Certiorari issued.
THIRTEENTH DAY.
Hugh F. Smith VS. the Bank of the State of
Indiana, Branch at Observation-Disclosures G,
P. Affirmed with three per cent.
Noah Nelson VS. James Johnson-Grant G. p.
Affirmed.
Orrin Arnold ct al VS. Samuel Curl-Noble
G.. P. Reversed.
Henry Swift VS. James Slevin-Deaborn G. p.
Affirmed with five per cent.
David Black ct al VS. Philip Dale-Cass G. p.
Reversed.
William Cissna VS. Jacob Harmon ct al-War-
rem G. p. Reversed.
Nathaniel Black vs. Ferdinand Straus ct al
Carroll G. P. Reversed.
John A. Beal VS. Oliver P. Morton-Marion
G.. @. Affirmed.
PERKINS. Justice-This is a suit for a man.
date against Governor Morton, commanding him
to issue a commission to John A. Beal, Esq, as
a Common Pleas Judge of the 18th District, in
the State of Indiana. The mandate was refused
below. The case was decided upon the pleadings.
The facts are these:
The Hon. John Coburn was Judge of said
Common Pleas District, and acted as such till
the 25th day of September, 1861, and including
the said 20th day, at the expiration of which he
retired from the active duties of the Office, and
left 1t vacant.
On the 30th day of September, the Hon. Char
les A. Ray was appointed judge of said District
by Governor Morton, and he entered Immediately
upon the duties of the Office.
On the 9Th of October following, ten days
after Judge Coburn retired from the bench, the
general annual election took place in the State
of Indiana. At that election John A. Beal,
ESQ, was a candidate for the Office of Common
Pleas Judge of the 18th District above mention
ed. and received a larger number of votes than
was cast, at said election, for any other person,
for said judgeship.
No notice was given to the voters that an cleo
ton for Judge was to be held; and an actual va
cancy, visible TO the people, by the retirement
from the bench of Judge Coburn, and the occu-
pancy of it by Judge Ray, had not occurred,
twenty days before the election, whereby the
voters had constructive notice. See Beal VS..
Ray, IL Ind. p
On the facts thus far appearing, it is clear that
the election Of Mr.. Beal was not in conformity
to law, and was of no validity.
But il further appears that the Governor de-
signated Judge Coburn to receive the appoint
ment of Colonel of the SD regiment of Indiana
volunteers, on the 10th Of September. that he
was mustered into the service of the United
States, on that day, by Col. Wood, and that he
acted in the two Offices Of judge and colonel, IN
the former under a commission, in the latter
without a commission, till the 26th OF Septem-
Der, when his commission as colonel was issued
to him and accepted, but was ante-dated so as to
appear to have been issued on the 10th of Sep
TENDER. This commission, it appears, was not
issued on the 18th, at the request of Col. Co
burn, and with the consent Of the Governor, in
order to give the former an opportunity to decline
the office altogether and continue in his Judge
ship If he should subsequently prefer TO do so.
We do not think these additional facts change
the character of the case. We doubt much il
Judge Coburn was colonel till be laid off his ju-
dicial robes, and received his commission as
such; but even if he was, the people were not
bound to take notice of the fact; and a case is
not presented where they could have constructive
notice of a vacancy, it one existed, TIL the re
tirement of Judge Coburn from the bench, and
the appearance upon ii OF Judge Ray.
The judgment is affirmed with costs.
Jlmes Hoss VS.. the State of Indiana, Marion
G.. G.. Reversed.
THOss was indicted for murder in the second
degree. The jury found him guilty, under the
instructions of the Court that the heaviest pun
ishment for manslaughter was Imprisonment in
the penitentiary for fourteen years, instead o.
twenty one years, of murder in the second de
gree, whereby he was sentenced for life TO the
State prison. The instruction may have preju
diced the minds of the Jury. If the jury haC
been told that they could punish for manslaugh
ter by twenty-one years. they might have 81
found, thinking that punishment to be sufficient
while thinking fourteen years insufficient. i
may be also stated that in homicide, if there bt
intent to kill, without generalization and malice
the offense is manslaughter. Case remanded to-
a new trial.
This case. in which Hoss was accused of tn
murder of Flanagan in Lawrence township, ere
ated a great deal of interest at the time of tn,
trial in the Circuit Court. Hoss is the son of al
old and respectable pioneer of Marion county
Fishback and Dye appeared for the State, and r
l.. and T. d. Walpole 70: defendant.
FOURTEENTH DAY.
Harry Sinner VS. Frederick Brandenburg-
Madison c.. @. Affirmed.
Samuel Hanway VS. William J.. Wallace
Marion @. P. Reversed.
John @. Cumnlett VS. Urias Wilkinson-Cla,
G. p. Reversed.
Jacob Nusbaum VS. Frederick Waltz-WabasI
G. P. Affirmed with FIVE per cent.
Adam Nossaman VS. John Rehabilitation G
G. Reversed.
Richard Osborn VS. Madison Osborn and Jane
G. Havens-Hendricks G. P. Affirmed with fv,
per cent.
James Thompson VS. Micajah G. White-Ham
ilton c.. P. Affirmed.
The Commonwealth Insurance Company v
Philip n. Monninger-Vigo G. @. Afirme'
with eight per cent.
Will HUMPHREYS ct al vs. Isaiah johnson ct al
Parke c.. @. Petition for re hearing granted.
Edward Banbury VS.. Henry Brett-Elkhart c
P. Reversed.
Isaac NJ. Coen ct al. VS.. Hiram Funk, guard
an-Fountain @. G. Affirmed with one per cent
damages.
William Williams ct al. VS.. Harris T. William
johnson @. p. Reversed.
Peru and Indianapolis Railroad Company vs.
VIM. Decentralization G. P. Affirmed will
five per cent. damages.
FIFTEENTH DAY.
VIM. Parker vs.. the State-Hendricks c.. F
Reversed.
Smith Horrun ct al. VS.. Abraham Bland, adm