Ninth. That he is an alien.

Tenth. That he has been called to sit on the jury at his own solicitation or that of another.

Eleventh. That he is biased or prejudiced for or against the defendant. 1. One who believes liquor-selling under a license is an immoral and improper business, but who thinks he is without prejudice which would influence him as a juror, is competent to try an indictment for violating the penal provisions of the law concerning the sale of liquors. Elliott v. State, 73 Ind. 10.

2. One who has, from newspaper report of a former trial of the cause, formed and expressed an opinion on the merits, which it would require evidence to change, but which would readily yield to evidence, is a competent juror.- Guetig v. State, 66 Ind. 94.

1794. Challenges summarily tried. 221. All challenges for cause shall be summarily tried by the Court on the oath of the party challenged or other evidence, and shall be made before the jury is sworn.

1795. Talesmen. 222. Whenever it becomes necessary to summon a juror from the bystanders, the Court shall instruct the Sheriff to call no person as a juror who has either solicited or been recommended for the position; and the Court may, of its own motion, or at the request of either party, direct the Sheriff to summon the talesmen from persons outside the court-house.

[1881 S., p. 114. In force September 19, 1881.]

1796. Rules. 223. The rules of evidence prescribed in civil cases and concerning the competency of witnesses shall govern in criminal cases, except as otherwise provided in this Act.

1. If the defendant offer proof of his good character, it must be limited to traits having relevancy to the crime charged. State v. Bloom, 68 Ind. 54.

1797. Witness, how summoned. 224. Witnesses on behalf of the State or of the defendant, in a criminal prosecution, may be compelled to attend and testify in open Court, if they have been subpoenaed, without their fees being first paid or tendered. The Court may recognize witnesses, with or without surety, to attend and testify at the same or the next term.

1798. Who are competent witnesses. 225. The following persons are competent witnesses:

First. All persons who are competent to testify in civil actions.
Second. The party injured by the offense committed.
Third. Accomplices, when they consent to testify.
Fourth. The defendant, to testify in his own behalf.

But if the de

fendant do not testify, his failure to do so shall not be commented upon

or referred to in the argument of the cause, nor commented upon, referred to, or in any manner considered by the jury trying the same; and it shall be the duty of the Court, in such case in its charge, to instruct the jury as to their duty under the provisions of this section.

1. Guilt may be found solely on the evidence of an accomplice.- Nevill v. State, 60 Ind. 308.

1799. Gaming. 226. Any person called as a witness to testify against another for gaming, or for keeping any gaming apparatus or any device or trick to procure money, or for keeping a place to be used for gaming, or for engaging in any lottery scheme or gift enterprise or raffle, is a competent witness to prove the offense, although he may have been concerned as a party, and he shall be compelled to testify as other witnesses; but such evidence shall not be used against him in any prosecution for such or any other offense, and he shall not be liable to trial by indictment or information, or punishment, for such offense.

1800. Witness as to misdemeanor. 227. Whenever any person is required to testify touching the commission of any misdemeanor, his evidence therein shall not be used in any prosecution against him, except in case of perjury committed by him therein; and he shall not be liable to trial by indictment or information or to punishment for such offense.

1801. Experts as to writings. 228. Persons of skill may be called to testify touching the genuineness of a note, bill, draft or certificate of deposit or other instrument of writing; but three witnesses at least shall be required to prove the fact of genuineness, except in the case of a larceny thereof. The single evidence of the cashier of the bank purporting to have issued the same may be received as, and deemed, prima facie evidence.

1. Our cases are in some confusion as to whether an expert may testify as to the genuineness of handwriting, merely by comparison with other writings admitted to be genuine. In Clark v. Wyatt, 15 Ind. 271, the question was not involved nor decided. In Chance v. Gravel Road Co., 32 Ind. 472, the question was not involved, but it was assumed that the rule had been stated in the negative in the former case; and, thereupon, its correctness was questioned obiter dictum. In Burdick v. Hunt, 43 Ind. 381, the question was involved, and was held in the affirmative. In Jones v. State, 60 Ind. 241, it was held in the negative, as being the rule established by Burdick v. Hunt. And in Forgey v. Bank, 66 Ind. 123, it was ruled in the affirma

tive.

2. It was Held-BIDDLE and NIBLACK, Judges, dissenting that a physician, if he object, can not be compelled to testify to a professional opinion until he is compensated. Dills v. State, 59 Ind. 15.

1802. Confessions. 229. The confession of a defendant made under inducement, with all the circumstances, may be given in evidence against him, except when made under the influence of fear, produced by threats; but a confession made under inducement is not sufficient to warrant a conviction without corroborating testimony.

1. Where objection is made to evidence of a confession, on the ground that it was induced by fear produced by threats, and proof is offered of such threats, the Court must hear such proof and determine the competency of the evidence of the confession, and can not leave it to the jury.- Brown v. State, 71 Ind. 470.

1803. General moral character. 230. In all questions affecting the credibility of a witness, his general moral character may be given in evidence.

1804. Discharge of defendant to testify. 231. When two or more

persons are included in one prosecution, the Court may, at any time before the defendant has gone into his defense, direct any defendant to be discharged, that he may be a witness for the State. A defendant may also, when there is not sufficient evidence to put him on his defense, at any time before the evidence is closed, be discharged by the Court for the purpose of giving testimony for a co-defendant. The order of discharge is a bar to another prosecution for the same offense.

1805. Depositions. 232. The defendant may, by leave of Court, take the depositions of witnesses residing out of the State, to be read on the trial; but, before leave is given, the defendant must enter of record his consent that the depositions of witnesses residing out of the State may be taken and read on behalf of the State, relative to the same matter; and the defendant may, on the same terms, by leave of Court, or by notice to the Prosecuting Attorney, take the deposition of any witness conditionally. 1806. Proof in rape. 233. In prosecutions for the offense of rape, proof of penetration shall be sufficient evidence of the commission of the offense.

1807. Corroborating evidence in seduction, etc. 234. In prosecutions for seduction, and for enticing and taking away a female for the purposes of prostitution, the evidence of the female must be corroborated to the extent required as to the principal witness in cases of perjury.

1808. Receiving stolen goods, etc. 235. In any prosecution for the offense of buying, receiving, concealing, or aiding in the concealing of any stolen property, it shall not be necessary, on the trial thereof, to prove that the person who stole such property has been convicted.

1809. Written instruments considered chattels. 236. Bonds, promissory notes, bank notes, treasury notes issued by the authority of the State of Indiana, bills of exchange, or other bills, orders, drafts, checks, or certificates for or concerning money or property due or to become due or to be delivered, any deed or writing containing a conveyance of land, or any valuable contract in force, or any receipt, release, or defeasance, or any other written instrument whatever, shall be considered as personal goods, of which larceny may be committed.

1810. Treason. 237. No person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or upon his confession in open Court.

1811. Highways. 238. In any prosecution for obstructing a highway, or for neglecting to keep a highway in good repair, it shall be sufficient to - prove that it is used and worked as such.

1. But there may be a highway, within the prohibition against obstructing highways, which has never been worked.-- State v. Frazer, 28 Ind. 196.

1812. Trespass to lands. 239. In any prosecution for trespass or injury to lands of this State or of the United States, or to the lands of nonresidents of this State, or for a violation of any law of this State with respect to them, it shall be sufficient to prove that such lands are reputed, in the neighborhood where such lands lie, to belong to the State or to the United States or to be non-residents' lands.

1813. Public contracts. 240. In all prosecutions against officers for having an interest in public contracts, any contractor with any State officer, or with any appointee or agent of such officer, or with any county, town ship, town, or city officer, or appointee of the same, shall be compelled to

testify against the officer of said State, county, township, town or city; and such officers or their appointees or agents shall be compelled to testify against any contractors therewith; but such evidence shall not be used against the party testifying, in any prosecution against himself, and the person thus testifying shall be exempt from prosecution or punishment for such offense.

1814. Transporting game. 241. The possession by any railroad company, express company, common carrier, or person of any game or birds marked or labeled for any points beyond the limits of this State, or which shall be shown by any way-bill, bill of lading, or shipping-book, to be intended for delivery at any place beyond the limits of this State, shall be prima facie evidence of the violation of the provisions of law with respect to the transportation of game or birds.

1815. Gaming-houses. 242. It shall be sufficient evidence that any building or other place was rented for the purpose of gaming, if such gaming was actually carried on, and the owner or lessor thereof knew or had good reason to believe that the lessee suffered any gaming therein, and such owner or lessor took no sufficient means to prevent or restrain, the

same.

1816. Evidence in civil suit for fraud. 243. The discovery of any fraud as against creditors, under oath in any civil suit, by any person, shall not be evidence against such person on any criminal prosecution for committing such fraud.

1817. Embezzlement by officer. 244. Any failure or refusal to pay over or to produce the public money, or any part thereof, by any officer or other person charged with the collection, receipt, transfer, disbursement, or safe-keeping of the public money, or any part thereof, whether belonging to the State, or to any county, civil or school township, municipal corporation, or any other public money whatever; or to account to or make settlement with any proper and legal authority, of the official accounts of such officer or person,- shall be prima facie evidence of the embezzlement thereof; and upon the trial of any such officer or person for the embezzlement of public money, it shall be sufficient evidence, for the purpose of showing a balance against him, to produce a certified transcript from the books of the Auditor of the State or the Auditor of the county, or the records of the Board of Commissioners of the county; and the refusal of any such officer or person, whether in or out of office, to pay any draft, order or warrant drawn upon him by the proper officer for any public money in his hands, no matter in what capacity the same was received or is held by him; or any refusal by any such person or public officer to pay over to his successor any public moneys or securities promptly, on the legal requirement of any authorized officer of the State or county,— shall be taken, on the trial of an indictment or information against him for embezzlement, as prima facie evidence of such embezzlement.

1818. Testimony of convict. 245. When it is necessary to procure the testimony of a person confined in any of the State prisons, or in any work-house, jail, or reformatory institution, on the trial of any issue upon an indictment or information, or upon any hearing before a grand jury, the Court, or the Judge in vacation, may order a subpoena to be issued, directed to the Warden of such State prison, or the Superintendent or Keeper

of such work-house, jail, or reformatory institution, commanding him to bring the witness named in the subpoena before the Court.

1819. Keeper to bring witness. 246. The Warden, Superintendent, or Keeper, upon receiving such subpoena, shall take such witness, or cause him to be taken, before the Court, at the time and place named in the subpoena, and hold him until he is discharged by the Court. When so discharged he shall be returned, in the custody of the officer, to the piace of imprisonment from which he was taken; and such officer may command such assistance as he deems proper for the safe transportation of the witness.

1820. Witness, how kept. 247. When such witness is in attendance upon any Court, he may be placed, for safe-keeping, in the jail of the county. The county in which the offense was alleged to have been committed shall pay the actual and necessary expenses of producing, keeping, and returning such witness.

[1899 S., p. 448. Approved March 4, 1899.]

1820a. Judge related to defendant. 1. That no judge of any court, and no special or acting judge, shall preside in, or try any penal or criminal cause or proceeding, in which he is related to the defendant by marriage or by blood, within the sixth degree of consanguinity; nor of which he has been of counsel either for the State or the defendant; and it shall be his duty to select a special judge to try any such case, as is provided for the selection of such judge, where a change of venue is taken from the regular judge by the defendant, under the provisions of said above entitled act.

1820b. Special judge. 2. In case any prosecuting officer shall file a written motion, showing any of the above mentioned grounds of disqualification in any such case, such judge shall thereupon proceed to select a special judge to try such case, as is now provided for the selection of a special judge, where a change of venue is taken from the regular judge by the defendant, under the provisions of said above entitled act.

[1881 S., p. 114. In force September 19, 1881.]

1821. By Court. 216. The defendant and Prosecuting Attorney, with the assent of the Court, may submit the trial to the Court, except in capital All other trials must be by jury.

cases.

1. It is wholly within the discretion of the trial-Court to compel the State to elect on which count a defendant shall be tried.-Lamphier v. State, 70 Ind. 317.

1822. Separate in felony. 214. When the indictment or information is for a felony charged against two or more defendants jointly, any defendant requiring it, before the jury is sworn, must be tried separately.

1. The corresponding section of the Act of 1852 did not, in terms, confine this privilege to cases of felony, and it was held applicable to misdemeanors when prosecuted by Indictment.-Trisler v. State, 39 Ind. 473. Though not, when by information,— Lawrence v. State, 10 Ind. 453.

1823. Order of trial. 248. The jury being impaneled and sworn, the trial shall proceed in the following order: