No 4

State of Indiana
vs

Benjamin Lemaster

Box 58

Praecipe for
witnesses


Filed April 1st 1858
Alex Miller Clk
issued
Ray & McFarland
Defts Attys



The State of Indiana, Shelby County, sct:
          THE  STATE  OF  INDIANA,  TO  THE  SHERIFF  OF  SAID  COUNTY,  GREETING.
You are hereby commanded to summon  Howard P. Johnson,  John Brockman & Philip Robins
to appear before the Judge of the Shelby Circuit Court on the first day of the next Term, to be held at the Court House in Shelbyville, on the first Monday of April, 1858, to testify in an action wherein The State of Indiana is Plaintiff, and  Benjamin Lemasters  is Defendant, on behalf of the Plaintiff; and return this summons.
Witness, the Clerk of said Court, this 3rd day
of February, 1858.          
Alex Miller   Clerk C. C.


                    Served as commanded March 2nd 1858
S. L. Vanpelt
Sheriff S C

~ ~ ~ ~ ~ ~ ~ ~


The State of Indiana, Shelby County, sct:
          THE  STATE  OF  INDIANA,  TO  THE  SHERIFF  OF  SAID  COUNTY,  GREETING.
You are hereby commanded to summon  Howard P. Johnson,  John Brockman  Philip Robins  Thomas W Edmonds  Hugh Cochran
to appear before the Judge of the Shelby Circuit Court on the first day of the next Term, to be held at the Court House in Shelbyville, on the first Monday of April, 1858, to testify in an action wherein The State of Indiana is Plaintiff, and  Benjamin Lemasters  is Defendant, on behalf of the Plaintiff; and return this summons.
Witness, the Clerk of said Court, this 5th day
of February, 1858.          
Alex Miller   Clerk C. C.

Served the within witnesses by reading in their hearing
S. L. Vanpelt
Sheriff S C

~ ~ ~ ~ ~ ~ ~ ~

State
  vs.
Lemaster
Subpa  Zachariah Webb  to attend & testify as a Witness on the trial of the above entitled cause instanter.
Ray & McFarland

~ ~ ~ ~ ~ ~ ~
State of Indiana
vs
Benjamin Lemaster
                  The Clerk of the Shelby Circuit Court will please issue a subpoena for  Samuel Duckworth,  John Duckworth,  John Cooper,  Basil Andrews,  Tobias Vanschoick,  John Snepp,  Enoch Fouty,  to the Sheriff of Shelby Co.
          And to Johnson Co for  John High,  Henry Goodwin,  and  James Sandifur.       instanter
March 31st  1858.
Ray & McFarland.
Defts Attys.

~ ~ ~ ~ ~ ~ ~


State of Indiana
vs   }}   faulse pretences
Benjamin Lemaster


Indictment

A true bill
David Thacher
foreman
------------------------
Witnesses
H P Johnston
John Brockman
Philip Robbins

Filed April 8th 1858
Alex Miller Clk



The State of Indiana   }}
County of Shelby }}
          In the Shelby Circuit Court at the April Term 1857
The Grand Jury of the County of Shelby in the State of Indiana empannaled charged and Sworn in the said Shelby Circuit Court to enquire in and for the body of said County of Shelby upon their oaths charge and present that  Benjamin LeMasters  late of said County on the 4th day of August 1855 at the County of Shelby in the State of Indiana devising and intending to cheet[sic] and defraud one  Howard P Johnston of his goods Money chattles and property unlawfully and feloniously did fauslely and designedly pretend to him the said  Howard P Johnston  That he the said  Benjamin LeMasters  was the owner of one hundred hogs which he had then and there on his farm in said County of Shelby That he then and there had also a Large crop of corn on said farm of which he was the owner That his name was  John Brockman  and then and there resided on the Road leading from one  Lamars  to Sugar Creek in said County That he the said  Benjamin LeMasters  then and there wished and designed to feed and fatten said hogs on said Corn  And That he the said  Benjamin Lemasters  then and there offered to sell and contract to said  Howard P Johnson  and did then and there sell and contract to said Johnston said one hundred hogs to be delivered to said Johnston on the       day of       1855
Where in truth and in fact he the said  Benjamin LeMasters  then and there was not the owner of one hundred hogs which he then and there had on his farm in said county of Shelby That nor had he then and there any other number of hogs on said farm  And Whereas in truth and in fact the said  Benjamin Lemasters  had not then and there a Large crop of corn on Said farm on which he was the owner, nor had he any corn on said farm whatever nor was he the owner then and there of said farm
And Whereas in truth and in fact his name was not then and there  John Brockman  and then and there resided on the Road leading from  Lemars  to sugar creek in said County   And Whereas in truth and in fact he the said  Benjamin Lemasters  did not then and there wish and design to feed and fatten said hogs on said Corn
And Whereas in truth and in fact the pretences and representations so made as aforsaid by the said  Benjamin Lemasters  to the said  Howard P Johnston  was then and there in all respects utterly and faulse and untrue  To wit on the day and year first before mentioned at the County aforsaid  And Whereas in truth and in fact the said Benjamin Lemasters  well knowing the said pretences so by him made as aforsaid to the said  Johnston  to be utterly faulse and untrue at the time of making the same by color and means of which faulse said pretences and pretence he the said  Benjamin Lemasters  did then and there unlawfully and feloniously obtain from the said  Howard P Johnston  in said sale and contract of said hogs as aforsaid the sum of one hundred Dollars in Money of the value of one hundred Dollars   And Divers Bank notes a Description of which is to the Grand Jury unknown of the value of one hundred Dollars then and there being the personal goods chattles and moneys of him the said  Howard P Johnston  with intent feloniously and designedly to cheat and defraud him the said  Howard P Johnston  to the Great Damage of the said  Howard P Johnston  of two hundred Dollars
/s/   Wm Patterson
Pros Atty


~ ~ ~ ~ ~ ~ ~ ~ ~

State of Indiana
  vs
Benjamin Lemaster

-------------------

Affidavit for
Continuance
------------

Filed in open
court April 8th
1858.   Alex Miller Ck

Be it Remembered that on this 8th day of April 1858 personally appeared in Open Court  Benjamin Lemaster  the defendant and being duly sworn says that He cannot safely go to trial of the Indictment at the present time of this Court without the testimony of  Michael Kegley  and His wife, or one of them, who now reside in the State of Iowa and have so resided in the State of Iowa ever since He was arrested on said Indictment that He is informed and verily believes that the State will prove by one  Howard P. Johnson  that some Man made a contract with him to deliver a Lot of Hogs as charged in the Indictment by the name of  John Brockman,  and that the said  Howard P. Johnson  will swear that He believes that the affiant is the identical Man who made such Contract and procured the sum Sum of One Hundred Dollars as charged in the Indictment, that said Johnson will swear that said money was procured and said Contract made on the 13th day of September 1855, late in the afternoon; the defendant says that He now surprised to learn from His Counsel that said Johnson at the late term of the Common Pleas Court of Shelby County did swear in the civil action to recover the One Hundred Dollars from the Defendant that He was quite certain that the Deft is the identical man who had obtained said Money as aforesaid, although the Deft had heard the said Johnson swear on two other occasions while the Defendant was under a preliminary Examination in Johnson county on this same charge, on which occasions the said Johnson swore that He could not certainly identify the Defendant or as the Guilty Man.  He further swears that He was under the impression until this day that He could prove such facts by one  Webb  as would show that the offence, if committed at all, was committed by some One living in Brown County Indiana, but learns today that He cannot prove such facts by the said  Webb;  He says in consequence of these impressions and because He has been in Jail all the while since His arrest, and being unable to employ Counsel to defend him in this Cause until until[sic] the 1st day of this court, He had not learned the name of any witness within the process of this Court by whom He can prove His whereabouts on the day and night of the 13th of Septr 1855.  Although He is prepared to prove by Witnesses that on the Morning of the 14th Septr. 1855.  He was seen near His House nearly thirty miles West of Shelbyville coming East.  He swears He is not guilty as charged, and that He believes He can prove by the said  Kegley  and Wife that on the 13th day of Septr 1855, When the Said Money is supposed to have been obtained, and also in the evening of said Day, He was at Home in Johnson Co. Ind. nearly 30 milesWest of Shelbyville where said money is alleged to have been obtained; that said Witnesses resided on the Same Farm with Deft. at that time; that He knows of no other Witness by whom He can prove the same facts whose testimony He can obtain, that the testimony thus expected from said Witnesses is true, and that if this couse be continued until next term and an Order Granted by this Court to take the Deposition of said Witnesses, He can procure the same by that time, and He hereby consents that the State may take any testimony desired to be used on the trial at the next term; He further shows that He is in danger of being wrongfully convicted by the testimony of said Johnson if He go to trial at this time and that He had been twice discharged by the court on said Johnson's testimony, that He does not make this Application for delay but for Justice
/s/   Benjamin LeMasters                


Subscribed and sworn to and for me in open court April the 8th 1858
Alexander Miller   Clerk                                    

Transcribed by Phyllis Miller Fleming

Civil Cases Index       Main Page