majority">Stuart, J.

The defendant was indicted in the Perry Circuit Court for the murder of James B. Jagers; tried and convicted of murder in the second degree; and sentenced to the penitentiary for life.

At the proper time a motion for a new trial was interposed and overruled; exception was taken; and the evidence was made part of the record.

The only question of importance, claiming consideration, arises on the motion for a new trial.

The motion was predicated on the affidavit of the defendant that he was surprised by the evidence of one Horne, a witness for the state, who testified to a threat made by the prisoner eighteen months before the alleged murder, that “if Jagers ever crossed his path or insulted him, he would kill him;” that this statement of Horne is false, and that if a new trial be granted he can prove it so by certain persons named; that he had been in confinement ever since the death of Jagers, and had no opportunity to prepare, and no means wherewith to employ counsel; that the defence was made by counsel assigned him when the case was called for trial, who knew nothing of the circumstances except as they were developed in the evidence, &c.

The defendant and Jagers were both drunk at the time of the homicide. They fought several times, and the prisoner got the worst of it. Almost the only evidence of what took place is what the prisoner relates himself; and it appears that he was too drunk to have a very clear idea of what did happen. Between the encounters the prisoner was seen by Miller, who testifies that his face was bloody, the hair torn down over it, his shirt torn, &c. He was in *409a violent rage, inquiring for a gun, and threatening vengeance on Jagers. He then returned to his house, where Jagers was, when, as the prisoner relates it, they had another encounter; that Jagers had him down, and had the fire-shovel, which the prisoner, in the struggle, got from him, and with it killed Jagers.

J. Pitcher, for the appellant.D. C. Chipmcm, for the state.

We are of opinion that on this state of facts the prisoner was entitled to a new trial. Without the evidence of Horne, the case is not one of very great aggravation. Aside from what Horne testifies, there is no evidence of premeditated malice. The position of the prisoner, in jail, without counsel and without means to employ such aid, is to be considered. It was not in his power to know what case the state would make against him, or by what witnesses. If it could be shown that he was aware that Horne was to be a witness, and knew what he would testify, it might possibly give the case a different aspect. In such circumstances his course would have been to file an affidavit for a continuance, to procure witnesses to impeach or contradict Horne, if he had not the means ready at hand to do so. If with such knowledge before trial, he failed to make the application for a continuance, his application for a new trial, for the same reason, would have come too late. -

Such an affidavit before trial would have entitled him to a continuance, within the ruling in Spence v. The State, 8 Blackf. 281. Accordingly are Gross v. The State, 2 Ind. R. 135.—Lindville v. The State, 3 id. 580.

The crime is alleged to have been .committed on the 11th of October, 1854. The bill was found November 21, 1854, and the prisoner was immediately put on trial, as appears from the jurat of the affidavit, which is dated November 23,1854.

In view of all the facts, we think the new trial should have been granted.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.

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