Daily State sentinel. [volume] (Indianapolis, Ind.) 1861-1865, 1862-06-10
The Supreme Court of Indiana. Cases
Decided.
TWELFTH DAY


Joseph C. Silver Cyrus S. Burgan ct al
Wells C. G. Dismissed.
Caroline Gilbert Executrix W Piauh-Elk-
hart e. p Reversed.
Richard Green W Joseph s. Whte-Cass c..
c. Affirmed with FIVE per cent damages
Edward A. Jocelyn vs. Melinda Biddlnger-
Decatur c. G Affirmed
David Engler al vs. Daniel Davis-Shelby
G. Il. Reversed
George " Lane vs. William 5. Holman ct al
-Deaborn c. G. Affirmed
Peter Wo0dfeld OF al vs. Thomas Barbee-
Tippecanoe @ p Affirmed with one per cent
Lewis X. Sharpe Stephen JOnes-Howard
C. F. Affirmed with five per cent damages
William ID Stancff VS. Judson Palmetter-
Noble c. c. Reversed.
Samuel 7 Mayus vs. Benjamin s. Wheeler
Warren =. G. Certiorari issued
THIRTEENTH DAY.
Hugh f Smith vs. the Bank of the State of
Indiana, Branch at Lawreuceburg-Dearborn Z,
p Affirmed with three per cent.
Noah Nelson vs. James Johnson-Grant c. Z.
Affirmed.
! Orrin Arnold ct al VS. Samuel Curl-Noble
I G. L. Reversed.
Henry Swift vs. James Slevin-Deaborn c. p.
Affirmed with FIVE per cent.
David Black ct al vs. Philip Dale-Cass C. p.
Reversed
William Cssna vs. Jacob Harmon ct al-War-
rem c. p. Reversed.
/ Nathaniel Black vs. Ferdinand Straus ct al
Carroll c. z. Reversed
! John A. Beal VS. Oliver p. Morton-Marion
c. c. Affirmed.
PERKINS. Justice-This is suit for man
date against Governor Morton, commanding him
to issue commission to John A. Bea. Esq, as
Common Pleas Judge of the 18th District, in
the State of Indiana. The mandate 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 2Sth day of September, 1861, and including
the said 18th day, at the expiration of which he
retired from the active duties of the Office, and
left 1t vacant.
On the goth day of September, the Hon Char
les a. Ray appointed judge of said District
| by Governor Morton, and he entered immedlately
upon the duties of the office.
| On the Sth 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 larger number of votes thar
was cast. at said election, tor any other person
for said iudgeship.
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
veters had constructive notice. See Beai VS.
Ray, IL Ind. p. =.
On the facts thus far appearing, it is clear tha
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 Indians
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, il
the former under commission, in the latter
without commission, till the 2oth OF Septem
Der. when his commission colonel was ISSUED
to him and accepted, but was ante dated so as tc
appear to have been issued on the 10th of Sep
TENDER. This commission. it appears, was not
issued on the 10th, at the request of Col. Co
! burn, and with the consent OF the Governor, II
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 chang,
the character of the case. We doubt much i
Judge Coburn was colonel till he laid off his ju
dcial robes, and received his commission a:
SUCH but even if he was, the people were no
bound to take notice of the fact; and case il
not presented where they could have constructive
notice of vacancy. il one existed till the re
tirement of Judge Coburn from the bench, anC
the appearance upon it of Judge Ray.
The judgment is affirmed with costs
James Hoss the State OF Indiana, Marion
c. c. Reversed.
fHoss was indicted for murder in the secon'
degree The jury found him guilty, under tn
instructions of the Court that the heaviest pun
ishment for manslaughter was Imprisonment II
the penitentiary for fourteen years, instead o
twenty one years, of murder in the second &c
gree whereby he was sentenced for life 10 tn
State prison. The instruction may have prelu
diced the minds of the jury. Ii the jury ha'
been told that they could punish for manslaugh
ter by twenty one years, they might have :
found. thinking that punishment to be sufficient
while thinking fourteen years insufficient.
NAV bee also stated that in homicide. II there b
intent to Kill, without generalization and malice
the oilense is manslaughter Case remanded to
a trial.
This ease. in which HoSs was accused Of til
murder of Flanagan in Lawrence township. ere
7 ated a great deal of interest At the time OF TN
TRIAL in the Circuit Court Hoss is tie son OF a
old and respectable pioneer of Marion count,
Fishback and Dye appeared for the State, ana h
l.. and r ID. Walpole io- defendant
Death Of VI II. bryant