from liability upon his surrender of the principal in open court, with an offer to pay such costs as the court may direct, at any time before judgment is taken against such surety upon the recognizance; and such surrender may be made after the principal has been convicted of the offense charged. Weaver v. State, 56 App. 394, 105 N. E. 517.

As a general rule the arrest of the principal for the same offense will discharge the sureties on a bond that was previously given to secure the appearance of such principal to answer for such offense. Weaver v. State, 56 App. 394, 105 N. E. 517.

This section required the payment in criminal cases, of such costs as the court may adjudge, before sureties can be discharged from liability on forfeited recognizance. State ex rel. Smith v. Smith, 65 App. 471, 117 N. E. 553.

There is a substantial compliance with this section, where the sureties on a recognizance in a bastardy case, standing ready to pay the costs and to confess judgment therefor. State ex rel. Smith v. Smith, 65 App. 471, 117 N. E. 553. ARTICLE 10.-PLEADINGS.

It is the filing of the accusation in lawful form that invokes the jurisdiction of the court in the particular cause. note to section 1989.

2040. Indictment or affidavit.

Pease v. State,

App.

129 N. E. 337. See

There are some offenses in which the commission thereof may be charged in the language of the statute and resort will be had to the common law for a definition of the offense, and the offense of sodomy is one of such offenses. Glover v. State, 179 Ind. 459, 101 N. E. 629.

The statement of ultimate facts which the state must prove in language is sufficient without stating the evidence relied upon. 188 Ind. 14, 121 N. E. 369.

2043. Amendment of affidavit.

plain and concise Scherer v. State,

If a prosecution is commenced before a justice of the peace and the defendant appeals to the circuit court, an amended or new affidavit charging the same offense may be filed in the circuit court. Malone v. State, 179 Ind. 184, 100 N. E. 567. An affidavit with an insufficient jurat may be amended under this section. Mayhew v. State, - Ind. 128 N. E. 599.

2045. Charging the offense, construction.

In charging the commission of a crime the exact words of the statute need not be used, it being sufficient to use equivalent words. Hart v. State, 181 Ind. 23, 103 N. E. 846; State v. Frederick, 183 Ind. 509, 109 N. E. 747.

The words "gaming" and "gambling" have been used interchangeably in the statute and may be construed to mean the same. State v. Frederick, 183 Ind. 509, 109 N. E. 747.

2046. Statement of time.

Under this section, the findings of the juvenile court, in a prosecution for contributing to the delinquency of a girl under sixteen years of age, that the appellant did not cause and encourage to commit an act of delinquency on or about a certain date, or on or about another certain date, the last date being the one mentioned in the affidavit filed in the cause, were held not insufficient for failing to show that the offense was committed prior to the time of filing the affidavit, nor because of the words "on or about," time not being of the essence of the offense. Parker v. State, 63 App. 671, 113 N. E. 763.

2047. What need not be stated.

It is not necessary to set out in an indictment or affidavit presumptions of law or matters of which courts take judicial notice. State v. Paris, 179 Ind. 446, 101 N. E. 497.

2055. Perjury or subornation.

In charging the commission of perjury by making a false affidavit before a notary public, it need not be alleged that the notary qualified as such when it is alleged that he was duly commissioned. Hall v. State, 178 Ind. 448, 99 N. E. 732.

2056. Larceny-Joinder of counts.

The state cannot be required to elect on which count of the indictment it would rely for a conviction when there is a joinder of a count for larceny with a count for embezzlement of the same property. Bowen v. State, Ind. E. 926.

128 N.

A joinder of a count for larceny with a count for the embezzlement of the same property is expressly authorized by this statute. Bowen v. State, Ind. 128 N. E. 926.

In charging larceny by the taking of money, it is only necessary to charge the unlawful taking of so many dollars or cents, and it is not necessary to prove that it was money issued by the United States. Moore v. State, 179 Ind. 353, 101 N. E. 295.

Description of money called for in check described in indictment held sufficient under this section. Hinshaw v. State, 188 Ind. 447, 124 N. E. 458.

2062. Indictment or affidavit, when sufficient.

Failure of an affidavit to contain a title giving the names of the parties and the name of the court is not cause for quashing the affidavit. Hall v. State, 178 Ind. 448, 99 N. E. 732.

An indictment is sufficient when the material facts constituting an offense are stated with such certainty as to apprise the defendant of the character and nature of the charge against him. Hart v. State, 181 Ind. 23, 103 N. E. 846.

An indictment charging involuntary manslaughter for violation of the automobile law, was held sufficient in view of this section. Smith v. State, 186 Ind. 252, 116 N. E. 943.

Under this section and sections 2063, 2065 defects not appearing upon the face of an indictment are not raised by a motion to quash. Williams v. State, 188 Ind. 283, 123 N. E. 209.

Under this section and sections 2063, 2065, where an offense is charged with such certainty that defects do not prejudice defendant's substantial rights, they must be disregarded. Williams v. State, 188 Ind. 283, 123 N. E. 209.

An indictment which charges an offense so that the courts may pronounce judgment is sufficient under this section. Hinshaw v. State, 188 Ind. 447, 124 N. E. 458.

2063. Indictment or affidavit, not quashed, when.

An indictment alleging an unlawful sale of intoxicating liquors should not be quashed because the price given for such liquors is not alleged. Volker v. State ex rel., 177 Ind. 159, 97 N. E. 422.

In charging the offense of embezzlement by an officer by failing to turn over to his successor money belonging to the office and which he should have paid to such successor, it need not be alleged that such successor demanded the payment to him of such money. State v. Ensley, 177 Ind. 483, 97 N. E. 113.

The statement in an indictment of an impossible date when a crime was committed does not render the indictment bad when time is not of the essence of the offense. Boos v. State, 181 Ind. 562, 105 N. E. 117.

An indictment for manslaughter for violation of the automobile law, where the facts charged are more properly applicable to murder in the second degree than to involuntary manslaughter, was held not bad in view of this section relating to surplusage. Smith v. State, 186 Ind. 252, 115 N. E. 943.

See note to section 2062.

Cl. 10. Proof that chickens stolen by defendant in a larceny prosecution belonged to the husband instead of to the wife as alleged, is not prejudicial under this section. Lucas v. State, 188 Ind. 709, 121 N. E. 274.

2065.

Pleadings by accused-Motion to quash.

Motions to quash indictments or affidavits must specify one or more of the reasons specified in the statute. Gilmore v. State, 177 Ind. 148, 97 N. E. 422; Leach v. State, 177 Ind. 234, 97 N. E. 792.

Motions to quash indictments only reach such defects as are apparent on the face of the indictments. Pittsburgh etc. R. Co. v. State, 178 Ind. 498, 99 N. E. 801. See note to sections 344, 2062.

Irregularity in the selection of a grand jury under this section and sections 544a, 1668, Acts 1881, ch. 69, as amended by Acts 1913, ch. 10, can not be raised by motion to quash indictment. Jackson v. State, Ind. 121 N. E. 114.

Cl. 2. A motion to quash an indictment or affidavit because of insufficiency of statement of facts to show an offense, was held sufficient when made in the language of the statute, section 344 relating to demurrer in civil actions not applying. Robinson v. State, 185 Ind. 119, 113 N. E. 306.

Cl. 4. If an indictment or affidavit is not challenged by motion to quash because of uncertainty, such defect is waived under the terms of section 343a. Robinson v. State, 185 Ind. 119, 113 N. E. 306.

If an affidavit is quashed, the prosecuting attorney may file a new affidavit

charging the accused with the same offense. State v. Anderson, 177 Ind. 437, 98 N. E. 289.

2068. Arraignment.

In a prosecution for felony an arraignment is essential under this section and section 2072. Pritchard v. State, Ind., 127 N. E. 545.

2069. Plea of not guilty-Special defense.

If insanity is relied upon as a defense, the defendant must plead the same specially. Fritz v. State, 178 Ind. 463, 99 N. E. 727.

Evidence of a former acquittal being admissible, by virtue of this section, under a plea of not guilty, the supreme court on appeal from a judgment of conviction will not consider the question of the sufficiency of a special plea of former jeopardy as against a demurrer for want of facts. Barker v. State, 188 Ind. 263, 120 N. E. 598.

2070. Plea of insanity, reply.

When the defendant pleads insanity as a defense, the prosecuting attorney may reply to the same by a general denial. Fritz v. State, 178 Ind. 463, 99 N. E. 727.

If the state permits evidence to be introduced by a defendant under a plea of not guilty on the question of the insanity of the defendant, the state can not afterward contend that such evidence was improperly received. Fritz v. State, 178 Ind. 463, 99 N. E. 727.

Section 161 of the act of 1909, providing for the confinement of males who are acquitted on the ground of insanity is unconstitutional, and such section was repealed by the act of 1913. Morgan v. State, 179 Ind. 300, 101 N. E. 6.

2072. Standing mute.

A plea of not guilty may be entered for defendant who stands mute. Bennett v. State, 188 Ind. 380, 123 N. E. 797.

See note to section 2068.

2073. Plea of guilty, minor, parole.

Under this section and sections 2166, 2171, the court lost jurisdiction to enforce sentence where two full court terms have elapsed after defendant plead guilty and seven months after release from sentence under another conviction during which time he was not in the custody of the court. Smith v. State, 188 Ind. 64, 121 N. E. 829.

ARTICLE 11.-VENUE, CHANGE.

SEC.

2075. Special judge.

SEC.

2078. Change from county.

[Acts 1915, p. 30. In force April 26, 1915.]

2075. (1845.) Special judge.-204. In all cases where the change of venue is taken from the judge in any criminal action pending in any court in this state, or in any case where the presiding judge is disqualified from any cause, to try such cause, if the prosecuting attorney on behalf of the state and the defendant shall agree in open court upon some judge or member of the bar of any court in this state to try such cause, it shall be the duty of such court to appoint such judge or attorney so agreed upon to try such cause. In the absence of such

agreement, it shall be the duty of the court within five (5) days to nominate five (5) competent and disinterested persons, each of whom shall be an available judge or member of the bar of this state, to be submitted to the parties in the action from which the State of Indiana, by the prosecuting attorney, for the plaintiff's side and the defendant or defendants, within two (2) days thereafter may strike off two (2) of such names, each. The court shall thereupon appoint such person who shall remain unchallenged to preside in said cause and if the prosecuting attorney and the defendant or his attorney refuse to strike off names, then the clerk of the court shall strike for them. And, if the person so appointed, if not a regular judge, if he consent to serve, such attorney shall be qualified as other judges and his appointment and oath shall be filed with the clerk and entered on the order book and he shall have power to hear and determine such cause until the same is finally disposed of.

This act amends section 2075 of the Revised Statutes of 1914.

If a deputy prosecuting attorney is indicted for an offense growing out of his official acts, the prosecuting attorney is incompetent to agree with the defendant upon a special judge to try the case when the defendant applies for a change of judge, and the regular judge will not be compelled by mandate to appoint the judge so agreed upon. State ex rel. v. Ellis, 184 Ind. 307, 112 N. E. 98.

When a proper application is made for a change of judge, it is prejudicial error to refuse to grant such change. Woodsmall v. State, 181 Ind. 613, 105 N. E. 155, 899.

Section 423 of the Revised Statutes of 1914, providing for a change of judge after a judgment has been reversed on appeal and the cause remanded for a new trial, notwithstanding any changes that had previously been taken, applies to criminal actions. Woodsmall v. State, 181 Ind. 613, 105 N. E. 155, 899.

A special judge has jurisdiction over a cause until it is finally disposed of, and if a judgment is reversed on appeal and the cause is remanded for a new trial, the special judge which rendered the judgment has authority to rehear the case. Woodsmall v. State, 181 Ind. 613, 105 N. E. 155, 899.

2078. Change from county.

It is within the discretion of the trial court to grant a change of venue from the county in cases where the punishment can not be death, and the action of such court will not be reversed on appeal unless there is an abuse of such discretion. Leach v. State, 177 Ind. 234, 97 N. E. 792.

The rule of the court as to change of venue will not be reviewed on appeal, except for abuse of discretion. Smith v. State, 186 Ind. 252, 115 N. E. 943.

SEC.

ARTICLE 12.-CONTINUANCES.

SEC.

2089. Affidavit of accused for continu- 2091. Discharge for delay.

ance.

2089. Affidavit of accused for continuance.

Trial courts have a discretion as to the granting of continuances because of the absence of witnesses, but when a defendant shows by his affidavit that he has used due diligence to procure the attendance of a competent and material