Ward & Sunders et al., adv. Randolph, Adm'r,

238

Yoes, Adm'r, v. Moore & Kidd, Adm'rs,............ 121

Under our statute, service of a copy of the indictment on the accused 29 17

while he is in prison, and in the absence of his counsel, is sufficient,
and the same is true as to the jury list, if, under the code practice,
he is entitled to the latter.

2. — Objection to the panel should be taken by motion to set it aside.

3.

-

The erroneous rejection of a talesman is not a ground for new trial;
it is in the discretion of the court to excuse a talesman for any
ground deemed sufficient, without prejudice to the accused.

4. EVIDENCE: Secondary.

When the substance of the testimony of a witness before the commit

ting magistrate was, by consent of defendant's counsel, taken down
by the attorney for the state, and read to and subscribed by the wit-
ness, in the presence of the accused, and when he had an opportu-
nity of cross examining, and the witness was out of the jurisdiction
at the time of the trial, the deposition may be read as secondary
evidence, without any violation of the rule that "the accused shall
be confronted by the witnesses against him."

VOL. XXIX.-2

60 88 60 407

29 17 62 554

Hurley vs. The State.

5. — Objections to testimony should be specific.

When no specific objection is made to the competency or relevancy of the testimony, this court will not attempt to pass upon it.

6. CRIMINAL PRACTICE: To what papers the jury entitled.

Upon retiring for deliberation, the jury may take with them, and read, all papers that have been received in evidence in the cause, and it is in the discretion of the court to permit them to take the instructions.

7. INSTRUCTIONS.

An instruction by the court, though it may be unnecessarily long and redundant, and a portion of it argumentative for the purpose of comparing the relative value of direct and circumstantial testimony, and to some extent abstract, such parts being sufficiently qualified by other instructions, will be sustained, if, upon the whole, the charge seems to have been fair, impartial, and composed of principles of law expressed in substantially correct terms.

8. JOINT INDICTMENT: Proof under, where the accused sever at the trial. Where two persons are jointly indicted for murder, and sever at the trial, it is sufficient to prove the guilt of the one on trial, though the jury may have a doubt as to that of the other.

9. INSTRUCTION.

The refusal of the court to give an instruction that is not applicable to the indictment is no ground for new trial.

10. PRESUMPTIONS: In favor of the circuit court.

In the absence of any showing to the contrary, it must be presumed by this court that the oath was administered to the jurors in proper form.

11. JURORS: How talesman sworn.

When the regular panel is exhausted, and the deficiency of jurors is supplied by talesmen, they may be sworn separately as they are selected.

12.- Clerical error as to name of, how corrected.

When it appears that a juror belonged to the regular panel for the term; that the ticket upon which his name was written before drawing contained his proper name, and that by a clerical misprision, the clerk entered his name erroneously in the record of the proceedings, the error may be corrected by the court on the motion of the attorney for the state.