State v. . Dishman

Settle, J.

We think bis Honor should have charged the jury, in compliance with the prayer of the defendant, that there was no evidence to warrant his conviction.

We are to take it that all of the evidence has been sent to this court. From this, it appears that when the witnesses for the State entered the still-house, between eleven and twelve o’clock at night, “the defendant Joel Dishman was lying on a pallet apparently asleep,” and it is not shown that he said anything or heard anything, or even woke up and remained silent, during the time the State witnesses were in the still-house talking with the other defendants about the missing hog and the fresh meat. Why set forth the fact prominently, in the record of the evidence, that the defendant was apparently asleep, unless that fact bo of importance, and is to have its proper weight in determining the guilt or innocence of the accused ? And of what possible consequence could it be in determining that question, if it be true as contended by the State, that the defendant woke up and participated in the conversation about the lost hog ?

The only foundation for the suggestion that the defendant did awake and join in the conversation, is the very unsatisfactory statement that “ when the Cheathams charged the Dish-mans and Hardin with killing the hog and bringing it to their still-house, the Dislimans charged the Cheathams with killing the hog,” &c.

Let it bo remembered, there was no charge in the warrant against Joel Dishman, and in view of the fact, already commented upon, the circumstance that, in making up the case for this court, the Cheathams and Dislimans are spoken of in the plural number, affords no sufficient ground to infer that there was any evidence against Joel Dishman.

Let it be certified that there must be a venire de novo.

Pee Cueiam. Venire de novo.