Prosecution for arson. Conviction, fine, and sentence to the state prison.
Three errors are assigned: 1. In refusing to continue the cause. 2. In refusing to permit counsel to read from law books in their argument. 3. In refusing to grant a new trial.
1. The continuance was asked to obtain the testimony of bishop Purcell and others to the good character of the *491defendant. No effort had been made to obtain it,_ though there had been time enough for the accomplishment of the object between the arrest under the indictment and the trial. From three to four horns, by bi-daily conveyances, puts the citizen here in communication with Cincinnati, the residence of bishop Purcell and the other witnesses named. The defendant had had twenty-one days.
T. D. Walpole, R. L. Walpole and D. Wallace, for the appellant.' J. W. Gordon, for the state.2. The Court is charged with the duty of giving the law to the jury in criminal as well as in civil cases, though in the former the jury are the judges of. the law and the fact. Carter v. The State, 2 Ind. R. 617. The Court would not be bound to sit and hear counsel read all the numerous treatises on criminal law to the jury; and if not all, why any? Where should the Court stop?
3. The new trial was asked to enable the defendant to prove an alibi by the testimony of one Huston, who had not been examined on the trial had.
The affidavit states that the defendant slept with Huston the night the building in question in the case was burned, at what appears to be Huston's boarding-house, in the southern part of the city of Indianapolis. He admits that he knew and remembered the fact distinctly before the trial that had taken place, but had forgotten Huston's name, and, hence, made no effort to obtain his testimony.
It would seem to have been a very easy matter to have ascertained the name, through his counsel or some of the bailiffs, by a few minutes’ walk, or by sending to the boarding-house. The excuse does not appear sufficient.
Per Curiam.The judgment is affirmed with costs.