witness, and that he can probably secure the attendance of the witness at the next term, it is error to refuse the application for a continuance. Connors v. State, 183 Ind. 618, 109 N. E. 757.

Under this section, it is ground for conviction of affiant for perjury if the facts referred to by affiant are untrue to his knowledge, even if the absent witness would testify to such facts believing them to be true. State v. Jones, 185 Ind. 234, 113 N. E. 755.

It is error to refuse continuance under this section on an affidavit legally sufficient, on the ground that absent witnesses would testify that no illegal sales were made at the time alleged by the state. Torphy v. State, 188 Ind. 30, 121 N. E. 659.

Continuance for absence of witness is a matter of right unless the prosecuting attorney admits the truth of the facts to be proved by the absent witness. Roberts v. State, 188 Ind. 713, 124 N. E. 750.

2091. Discharge for delay.

The failure of defendant's motion, for a discharge under this section, to show that his trial was not delayed by his own act is fatal to the motion. Barker v. State, 188 Ind. 263, 120 N. E. 593.

SEC.

ARTICLE 13.-RIGHTS OF ACCUSED-ACCESSORIES.

2095. Accessory before the fact.

2095. Accessory before the fact.

SEC.

2097. Accessory after the fact.

An accessory before the fact to the commission of a crime can not be convicted unless there is sufficient evidence to show the guilt of the principal, and when such evidence exists the accessory may be tried before the trial of the principal, and it is for the jury to determine as to the sufficiency of the evidence. Murphy v. State, 184 Ind. 15, 110 N. E. 198.

In the trial of an accessory as though he were a principal, the evidence must show the guilt of the principal, and for this purpose the evidence may be circumstantial. Murphy v. State, 184 Ind. 15, 110 N. E. 198.

If a person stands in such relation to a misdemeanor as would constitute him an accessory before the fact, if the offense were a felony, he is regarded as a principal and punished as such. Thompson v. State, Ind. 125 N. E. 641. 2097. Accessory after the fact.

Under this section providing the same punishment for an accessory as for a principal, intent is essential to make one "accessory after fact" and requires knowledge of crime. Dielich v. State, Ind. 126 N. E. 220.

SEC.

ARTICLE 14.-IMPANELING JURY.

2101. Causes for challenge.

2101. Causes for challenge.

The fact that a juror knows the general reputation of the defendant for morality to be bad, is not ground for a challenge of the juror for cause. Leach v. State, 177 Ind. 234, 97 N. E. 792.

Jurors who have served on juries at the same term as talesmen may be challenged for cause, and when it is shown that such jurors are not members of the regular panel, and that they have served as such during the term, it is apparent that they must have served as talesmen. Benadum v. State, 182 Ind. 510, 107 N. E. 8.

SEC.

ARTICLE 15.-EVIDENCE.

2111. Who are competent witnesses. 2113. Misdemeanor-Use of evidence. 2115. Confession.

SEC.

2120. Seduction, proof, corroboration. 2122. Written instruments, chattels. 2130. Embezzlement by officer.

2111. Who are competent witnesses.

An accomplice of the defendant is a competent witness for the state when he consents to testify, and his testimony is to be considered and weighed the same as the testimony of other witnesses, and a defendant may be convicted on such testimony alone. Schuster v. State, 178 Ind. 320, 99 N. E. 422.

2113. Misdemeanor-Use of evidence.

The word "required" as used in this section, means to ask a right and by authority, and it is error to refuse to allow a defendant to change his plea of guilty and file a plea in abatement averring immunity. Atkinson v. State,

127

A confession of defendant made under inducement with all the circumstances may be given in evidence against defendant. Ogle v. State, Ind. N. E. 547.

Under this section when a confession has been obtained through fear, produced by threats or undue influence, it should be excluded. Ogle v. State, Ind. 127 N. E. 547.

A confession is prima facie admissible and the burden of showing its incompetency under this section is upon defendant. Ogle v. State, Ind. - 127

N. E. 547.

2120. Seduction, proof, corroboration.

On the trial of a charge of seduction of a female, evidence of preparations made by her in contemplation of marriage not in the presence of or with the knowledge of the defendant is not admissible, and if there is any evidence in corroboration of the testimony of the female its sufficiency is for the jury to determine. Hay v. State, 178 Ind. 478, 98 N. E. 712.

2122. Written instruments, chattels.

Larceny may be committed by stealing a bank check, although the taker did not realize any benefit from the check and could not have received money on it if he had tried to do so. Roberts v. State, 181 Ind. 520, 104 N. E. 970.

2130. Embezzlement by officer.

In charging a county treasurer with embezzlement by failing to pay over the money in his hands at the end of his term to his successor, it is not necessary to allege or prove that a demand was made on him to make such payment. State v. Ensley, 177 Ind. 483, 97 N. E. 113.

SEC.

ARTICLE 16.-THE TRIAL.

2135. Joint felony, separate trials. 2136. Order of trial.

2135. Joint felony, separate trials.

SEC.

2137. Reasonable doubt.
2142. Verdict, polling jury.

When persons are jointly indicted for the commission of a felony, there may

be separate trials ordered on the suggestion of the prosecuting attorney or at the instance of the court. Woodsmall v. State, 181 Ind. 613, 105 N. E. 155, 899.

2136. Order of trial.

It is not error for the court to refuse to give to the jury instructions requested by the defendant when such instructions are not signed by the defendant or his counsel. Weigand v. State, 178 Ind. 623, 99 N. E. 999.

The court may refuse to give to the jury instructions requested by the defendant when such instructions are not tendered to the court until after the argument has begun. Bartlow v. State, 183 Ind. 398, 109 N. E. 201.

See note to section 57.

127

Under this section refusal of the court to instruct jury on defendant's motion after prosecutor's argument is error. Hamke v. State, Ind. -9 127 N. E. 407. Cls. 5, 6. A request for special instruction may be modified in writing by the court in view of this section and section 561. Kocher v. State, Ind. N. E. 3. Cl. 6. In a prosecution for unlawfully keeping a room for gaming more specific or special instructions must be requested in writing under this section when full instructions have been given. Flatters v. State, Ind. 127 N. E. 5.

2137. Reasonable doubt.

If the evidence on the part of the state does not prove every element of the crime charged against the defendant beyond a reasonable doubt, or if the evidence on the part of the defendant is sufficient to raise a reasonable doubt of the establishment of any essential element of the crime, the defendant should be acquitted. Fritz v. State, 178 Ind. 463, 99 N. E. 727; Dorak v. State, 183 Ind. 622, 109 N. E. 771.

An instruction in a rape case that if there is reasonable doubt as to the grade of offense, the defendant should be found guilty of the lowest offense is properly and substantially in the language of this section. Koehler v. State, 188 Ind. 387, 123 N. E. 111.

All presumptions were in favor of the innocence of the defendant, except so far as his guilt or facts tending to prove his guilt were affirmatively established by the evidence. Bowen v. State, 128 N. E. 926; Dorak v. State, 183 Ind. 622, 109 N. E. 771.

2142. Verdict, polling jury.

Ind.

If on the return of a verdict the defendant requests that the jury be polled, and the request is denied and the jury is directed to return to the jury room and correct their verdict which is done and a new verdict is returned, and the defendant does not then request to have the jury polled he can not complain. Gianino v. State, 183 Ind. 199, 108 N. E. 579.

ARTICLE 17.-NEW TRIAL.

SEC.

2158. Causes for, motion, time to file.

2158. Causes for, motion, time to file.

Motions for new trials must be filed within thirty days from the date of the verdict or finding. Pittsburgh etc. R. Co. v. State, 178 Ind. 498, 99 N. E. 801; Flatter v. State, 182 Ind. 514, 107 N. E. 9.

It is a matter of discretion with a trial court to permit the filing of a supplemental motion for a new trial. Niswonger v. State, 179 Ind. 653, 102 N. E. 135.

Cl. 7. Under this clause, on appeal it is assumed that the ruling on motion for new trial was on the motion as presented by the record. Bush v. State, Ind. 128 N. E. 443.

Under the provisions of this statute, error in ruling on challenge to juror is not one occurring at the trial so as to be assignable as cause for a new trial. Bush v. State, Ind. —, 128 N. E. 443.

Cl. 7. The refusal of the trial court to give the jury a peremptory instruction in favor of the defendant at the conclusion of the state's evidence, if error, would be a cause for a new trial and should not be separately assigned as error. Durst v. State, Ind., 128 N. E. 920.

Cl. 9. When the supreme court may assume from statements in appellant's brief that appellant's motion for a new trial is based on this statute, it becomes the court's duty to look to appellant's condensed recital of the evidence as required by rule 22, clause 5 (55 N. E. vi). Barker v. State, 188 Ind. 263, 120 N. E. 593.

SEC.

ARTICLE 18.-ARREST OF JUDGMENT.

2159. Causes for arrest.

2159. Causes for arrest.

Motions in arrest of judgment raise only two questions, viz: That the grand jury that found the indictment had no legal authority to inquire into the offense charged; and that the facts stated in the indictment do not constitute a public offense. No questions as to the evidence can be considered under such motions. Pittsburgh etc. R. Co. v. State, 178 Ind. 498, 99 N. E. 801; Lay v. State, 180 Ind. 1, 102 N. E. 274.

Technical defects in an indictment are not sufficient cause for arresting the judgment, but if an indictment fails to aver material facts constituting the offense attempted to be charged, a motion in arrest of judgment should be sustained. Woodsmall v. State, 179 Ind. 697, 102 N. E. 130; Boos v. State, 181 Ind. 562, 105 N. E. 117.

If a court on the trial of a cause holds that the evidence shows that the prosecution was instituted in the wrong county, the state by taking proper exceptions may have the question determined by the supreme court on an appeal. State v. Yocum, 182 Ind. 478, 106 N. E. 705.

Where nothing appears to show that the bills of exceptions were ever filed after being signed by the judge, except the file mark of the clerk, the bills of exceptions are not a part of the record. Donovan v. State, 185 Ind. 15, 111 N. E. 433.

A bill of exceptions, filed after the term, is not a part of the record where the order book does not show an extension of time, notwithstanding the judge's certificate states that the bill of exceptions was tendered "within the time allowed by the court," and the order book entry of the date of the filing of the bill shows that it was ordered by the court that the bill "be and the same is now filed as a part of the record in this cause." Bass v. State, 188 Ind. 21, 120 N. E. 657.

The filing of instructions in a criminal case can not be shown by mere recitals in the bill or by the file mark of the clerk but must be in the record by bill of exceptions according to this section. Barker v. State, 188 Ind. 493, 124 N. E. 681.

[Acts 1915, p. 122. In force March 5, 1915.]

2165. (1930.) Contents of bill-Record.-289. The bill of exceptions must contain so much of the evidence as is necessary to present the questions of law upon which the exceptions were taken; but it shall not be necessary for the bill to contain all of the evidence given in the cause or proceeding, unless the decision of the court, or verdict of the jury, shall be called in question as being contrary to law, or not sustained by sufficient evidence. In case an original bill of exceptions shall be incorporated into the transcript of the record of any case on appeal, such original bill shall, in every case, constitute a part of such transcript, as if copied therein by the clerk, whether such original bill or a copy thereof be specified in the præcipe, or otherwise directed to be incorporated into such transcript: Provided, That every pleading, motion in writing, report, deposition or other paper, filed or offered to be filed, in any cause or proceeding, whether received by the court, refused or stricken out, shall be a part of the record from the time of such filing or offer to file; and any order or action of the court in respect to any such pleading, motion in writing, report, deposition or other paper, and every exception thereto taken by any party shall be entered by the clerk on the minutes or record of the court, and the same when so entered shall be a part of the record without any bill of exceptions. Every oral motion and the ruling of the court thereon and the exceptions taken thereto shall be entered upon the minutes or record of the court and shall be a part of the record without any bill of exceptions: Provided, further, That a motion to strike out or insert any matter, and the ruling thereon, shall not be a part of the record without a bill of exceptions, unless the matter to be stricken out or inserted is set out in full in the motion. And Provided further, That nothing herein shall be construed to prevent the bringing into or putting into the record by a proper bill of exceptions any matter, ruling or exception, except the indictment or affidavit, the motion to quash, the pleading in answer to such indictment or affidavit, the verdict, the motion and reasons for a new trial and the final judgment. This act amends section 2165 of the Revised Statutes of 1914.

Papers that are made a part of the record by statute without a bill of exceptions, can not be made a part of the record by a bill of exceptions. Adams v. State, 179 Ind. 44, 99 N. E. 483.

A motion for new trial on the ground that the verdict is not sustained by the evidence can not be considered on appeal without evidence in the record. Bennett v. State, 188 Ind. 380, 123 N. E. 797.