1854. (1785.) Rights of accused.-210. In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.

Private citizens can not be arrested and punished by order of military officers. Griffin v. Wilcox, 21 Ind. 370.

The legislature can not dispense with the necessity of setting forth the facts constituting a criminal charge. McLaughlin v. State, 45 Ind. 338.

Persons charged with crime may waive their privilege of being confronted with the witnesses. Butler v. State, 97 Ind. 378.

This section does not authorize a defendant to have witnesses summoned and compel them to testify as experts, without reinuneration. Buchman v. State, 59 Ind. 1; Dills v. State, 59 Ind. 15.

1855. (1786.) Accused must be present.-211. No person prosecuted for any offense punishable by death, or by confinement in the state prison or county jail, shall be tried unless personally present during the trial.

If a defendant voluntarily absents himself during the trial, he will be considered as waiving his right to be present. McCorkle v. State, 14 Ind. 39; State v. Wamire, 16 Ind. 357.

The defendant must have an opportunity to be present when a jury is discharged for failing to agree upon a verdict. State v. Wilson, 50 Ind. 487.

The defendant has the right to be present at all times during the trial, and this includes the giving of all instructions to the jury. Roberts v. State, 111 Ind. 340.

Arguments upon motions may be heard during the absence of the defendant. Epps v. State, 102 Ind. 539.

1856. (1787.) Stipulation for fine.-212. No person prosecuted for an offense punishable by fine only shall be tried without being personally present, unless some responsible person, approved by the court, undertakes to be bail for stay of execution and payment of the fine and costs that may be assessed against the defendant. Such undertaking must be in writing, and is as effective as if entered after judgment.

1857. (1788.) Accessory before the fact.-213. Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire or command, or otherwise procure a felony to be committed, may be charged by indictment, or affidavit and information, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or con

victed, and upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.

(As amended, Acts 1889, p. 260. Ell. Supp., section 302. In force March 9, 1889.) A person outside of this state, who becomes an accessory before the fact to the commission of a felony in this state, can not be punished in this state. Johns v. State, 19 Ind. 421.

Accessories before the fact may be charged and tried as principals. Wade v. State, 71 Ind. 535; Rhodes v. State, 128 Ind. 189.

Accessories before the fact may be prosecuted before the principal. Ulmer v. State, 14 Ind. 52.

The acquittal of the principal is a good defense for the accessory. McCarty v. State, 44 Ind. 214.

Mere consent to the commission of a crime does not make the person consenting an accessory. Clem v. State, 33 Ind. 418; Wade v. State, 71 Ind. 535.

The amendment of section 1788, R. S. 1881, by the act of 1889, did not materially change such section, nor did it relieve persons from liability for acts committed before such amendment. Sage v. State, 127 Ind. 15.

While section 1734, R. S. 1881, prescribing the form of indictments against accessories was in force, it was necessary that indictments should conform thereto. Sage v. State, 120 Ind. 201.

Persons present, aiding, counseling and abetting in the commission of a crime are not accessories, but principals. Doan v. State, 26 Ind. 495; Williams v. State, 47 Ind. 568.

There can be no accessories in misdemeanors either before or after the fact. Stratton v. State, 45 Ind. 468.

There can be no aider or abettor in the commission of involuntary manslaughter. Adams v. State, 65 Ind. 565.

Persons aiding and abetting an assault and battery may be accessories to the crime of manslaughter if death ensues. Goff v. Prime, 26 Ind. 196.

1858. (1789.) Accessory after the fact.-215. Every person, not standing in the relation of husband and wife, parent or grandparent, child or grandchild, mother or sister, by consanguinity or affinity, or master or apprentice, to any person guilty of any felony, who shall, after the commission of such crime, harbor, conceal, or assist any such offender with intent that he shall escape from detection, arrest, capture or punishment, shall be deemed an accessory after the fact and may be charged, indicted, tried and convicted and punished, though the principal be neither charged, indicted, tried or convicted, and upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal (As amended, Acts 1889, p. 260. Ell. Supp., section 303. In force March 9, 1889.) There can be no accessories in misdemeanors either before or after the fact. Stratton v. State, 45 Ind. 468.

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

1859. (1790.) How called-Solicitation.-217. The petit or trial jury used in civil cases shall act also in criminal cases; and where a jury trial is demanded, the sheriff shall call a jury in the manner prescribed by law or as directed by the court. Any person who solicits or attempts to influence the sheriff, or any of his deputies or bailiffs, to put him or another person on the jury shall be punished by imprisonment as for contempt. If any person be placed on the jury by

such request it shall be good cause for challenge or new trial.

When the regular panel is engaged in deliberating on a submitted cause, a special jury may be called to try another cause. Evarts v. State, 48 Ind. 422; Winsett v. State, 57 Ind. 26. See Rogers v. State, 33 Ind. 543.

If a jury fails to agree upon a verdict, a special jury may be at once called to try the cause. Pierce v. State, 67 Ind. 354.

Whenever the business of the court may require it, a special jury may be impaneled. Merrick v. State, 63 Ind. 327; Heyl v. State, 109 Ind. 589.

A jury in a criminal cause must be composed of twelve jurors. Jackson v. State, 6 Blkf. 461; Brown v. State, 16 Ind. 496; Allen v. State, 54 Ind. 461; Moore v. State, 72 Ind. 358.

The defendant by counsel, or in person, can not waive the right to require a jury to be composed of the number of jurors required by law. Brown v. State, 16 Ind. 496; Allen v. State, 54 Ind. 461.

1860. (1791.) Challenges by accused. 218. In prosecutions for capital offenses, the defendant may challenge, peremptorily, twenty jurors; in prosecutions for offenses punishable by imprisonment in the state prison, ten jurors; in other prosecutions, three jurors. When several defendants are tried together, they must join in their challenges.

If a challenge for cause by the defendant is improperly overruled, his challenge of the juror peremptorily will not cure the error. Brown v. State, 70 Ind. 576. The defendant makes the first challenges. Jones v. State, 2 Blkf. 475.

1861. (1792.) Challenges by state.-219. The prosecuting attorney shall have the same number of peremptory challenges that the defendant has in like cases.

1862. (1793.) Cause for challenge.-220. The following, and no other, shall be good causes for challenge to any person called as a juror in any criminal trial:

First. That he was a member of the grand jury that found the indictment.

If a juror states that he has not formed an opinion, and after verdict it is learned that he was on the grand jury returning the indictment, it will be cause for a new trial. Rice v. State, 16 Ind. 298.

Second. That he has formed or expressed an opinion as to the guilt or innocence of the defendant. But if a person called as a juror state that he has formed or expressed an opinion as to the guilt or innocence of the defendant, the court or the parties shall thereupon proceed to examine such juror on oath as to the ground of such opinion;

and if it appear to have been founded upon reading newspaper statements, communications, comments, or reports, or upon rumors or hearsay, and not upon conversations with witnesses of the transaction, or reading reports of their testimony, or hearing them testify; and the juror state on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case.

This clause is constitutional, and where a juror states on oath that any opinion formed by him from rumor or newspaper reports will not prevent him from rendering an impartial verdict, such juror is qualified. Stout v. State, 90 Ind. 1; Noe v. State, 92 Ind. 92; Dugle v. State, 100 Ind. 259; Morgan v. State, 31 Ind. 193; Clem v. State, 33 Ind. 418; Cluck v. State, 40 Ind. 263; Hart v. State, 57 Ind. 102; Butler v. State, 97 Ind. 378; Guetig v. State, 66 Ind. 94.

Jurors who have formed opinions upon information from persons who assumed to give the facts of the transaction, are not competent. Dugle v. State, 100 Ind. 259; Brown v. State, 70 Ind. 576; Walker v. State, 102 Ind. 502.

Opinions formed from conversations with witnesses to merely incidental matters do not necessarily disqualify the juror. Walker v. State, 102 Ind. 502.

If an opinion is based upon the truth of the information the juror is not incompetent. Burk v. State, 27 Ind. 430.

When some evidence is necessary to remove an opinion formed, the juror is incompetent. Fahnestock v. State, 23 Ind. 231.

That a juror has served on the trial of a similar case against the same defendant, does not necessarily disqualify such juror. Howell v. State, 4 App. 148.

Third. If the offense charged be punishable with death, that he entertains such conscientious opinions as would preclude his affixing the death penalty if the defendant should be found guilty.

It is cause for challenge on the part of the state that a juror has conscientious scruples against inflicting the death penalty, and this clause is constitutional. Gross. State, 2 Ind. 329; Driskill v. State, 7 Ind. 338; Fahnestock v. State, 23 Ind. 231; Greenley v. State, 60 Ind. 141; Stephenson v. State, 110 Ind. 358.

Fourth. That he is related within the fifth degree to the person alleged to be injured or attempted to be injured by the offense charged, or to the person on whose complaint the prosecution was instituted, or to the defendant.

Fifth. That he has served on a petit jury which was sworn in the same case against the same defendant, and which jury was discharged after hearing the evidence; or rendered a verdict which was set aside.

Sixth. That he served as a juror in a civil case brought against the defendant for the same act.

Seventh. That he has been subpoenaed in good faith as a witness in the case.

Eighth. That he is an habitual drunkard.

Ninth. That he is an alien.

Jurors are only required to be citizens of this state, and not citizens of the United States. McDonel v. State, 90 Ind. 320.

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.

If a juror believes that a moral man would not engage in the liquor traffic, and that such business is illegal, he is not competent to try a person charged with a violation of the liquor laws. Swigart v. State, 67 Ind. 287. See Elliott v. State, 73 Ind. 10.

But if a juror believes that persons engaged in such business are of bad moral character, but that such fact will not discredit a witness, he is competent in such a case. Dolan v. State, 122 Ind. 141.

If a juror in such a case would not give the same weight to the testimony of witnesses engaged in such business as to other witnesses, he is not a competent juror. Stoots v. State, 108 Ind. 415.

The mere fact that a person is indicted for a violation of the liquor law does not show that he is engaged in the sale of liquor, and it must appear that the juror has some bias or prejudice against the defendant in order to be disqualified. Shields v. State, 95 Ind. 299.

A juror is not disqualified because he believes that the defense of insanity should be closely scrutinized, and is opposed to feigned defenses of that character. Butler v. State, 97 Ind. 378.

A juror may have a prejudice against a particular business, but if he states he can waive any prejudice he may have against a person engaged in such business, he will be a competent juror to try any such person. Elliott v. State, 73 Ind. 10.

Jurors may be rendered incompetent for causes not specified in the statute as grounds for challenge. Block v. State, 100 Ind. 357; Rhodes v. State, 128 Ind. 189.

A deputy prosecuting attorney, or a deputy sheriff, are not competent jurors. Block v. State, 100 Ind. 357; Zimmerman v. State, 115 Ind. 129.

If a juror is personally interested in the result of the action, he is disqualified. Fleming v. State, 11 Ind. 234.

A failure to examine jurors as to their qualifications will be deemed a waiver of the right of challenge for such cause. Croy v. State, 32 Ind. 384; Estep v. Waterous, 45 Ind. 140; Kingen v. State, 46 Ind. 132; Gillooley v. State, 58 Ind. 182; Patterson v. State, 70 Ind. 341.

If parties know at the trial that a juror is incompetent and fail to object to him, they can not afterwards make the objection. Stevens v. Stevens, 127 Ind. 560; Buck v. Hughes, 127 Ind. 46; Coleman v. State, 111 Ind. 563.

If jurors make false answers to questions as to their competency their incompetency will be cause for a new trial. Hudspeth v. Herston, 64 Ind. 133; Pearcy v. Michigan Co., 111 Ind. 59; Rhodes v. State, 128 Ind. 189.

The competency of jurors is a question for the trial court to determine fromt he evidence, and will not usually be reviewed by the supreme court. McCulley v. State, 62 Ind. 428; Holloway v. State, 53 Ind. 554; Achey v. State, 64 Ind. 56; Walker v. State, 102 Ind. 502; Stephenson v. State, 110 Ind. 358.

Great latitude is allowable in the examination of jurors as to their qualifications. Epps v. State, 102 Ind. 539.

The right of challenge may be made at any time before the jury is sworn. State, 7 Blkf. 607.

Morris v. Defective eyesight on the part of a juror may be good cause for challenge, or for a new trial. Rhodes v. State, 128 Ind. 189.

1863. (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.