A motion to quash the indictment was properly overruled by the court, the allegations being amply sufficient to charge a burglary committed in the night time.
The defense in the case was an alibi. Mrs. Coleman, the wife of the party whose housé was burglarized, was the only witness who identified the defendant as the burglar. Without giving the language used by the witness,' we will substantially and briefly summarize the facts in evidence.
There, were four rooms to the house. One of the front rooms was occupied by Coleman and wife. Behind this immediately was an open space which to the right led out on the back gallery, and beyond this open space was the dining room, and behind the dining room was the kitchen; and there were doors leading from each of these rooms to the other. About twelve o’clock on the night in question Mrs. Coleman woke her husband up and told him some one was in the kitchen. He got up and went out in the yard, and armed himself with a hoe with which to attack the thief. Whilst he was out arming himself, Mrs. Coleman took the lamp, which was brightly burning, and proceeded through the dining room to the kitchen, where she discovered the intruder, and cried out to her husband, “here’s the thief.” The thief ran to the north window and endeavored to raise it, but could not do so, and Mrs. Coleman retreated back the way she came, still repeating the cry óf “here’s the thief.” She sat the lamp on the dining room table as she fled through *268that room. The burglar, not being able to go through the north window, followed Mrs. Coleman, and as he emerged from the kitchen and passed around the table where she had set the lamp, she says she recognized the defendant. By this time Coleman with his hoe had reached the open space leading on the back gallery, expecting the thief to make his exit from that point. In this, however, he was mistaken; for, instead of the thief, Mrs. Coleman took that direction, and as she emerged he let her have the blow intended for the thief, which knocked her down and broke two of her ribs. Meantime the thief, who was by no means “standing upon the order of his going,” fled through the room of Coleman and wife, and escaped into the darkness of night through a vine-clad window.
Before going into trial, defendant made application for a continuance, which was overruled, and it was urged again on the motion for a new trial, and again was overruled. This application does not seem to be wanting in diligence, materiality of the testimony, or probability of its truth, and under the circumstances of the case we. are of opinion it should have prevailed on the motion for a new trial.
There are other matters complained of, growing out of the proceedings on the trial, but none of them are likely to arise again, and we do not feel called upon to discuss them.
The judgment is reversed and the cause remanded"
Reversed and remanded.
Opinion delivered November 18, 1882.