1877. (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.

The confession of the thief is not admissible against a person charged with receiving the stolen goods. Reilley v. State, 14 Ind. 217.

1878. (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. 1879. (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.

1880. (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.

See section 2043.

It is not necessary that a public highway shall be worked in order to make it criminal to obstruct the same. State v. Frazer, 28 Ind. 196.

The fact that a highway is used and worked as such is not conclusive of the legality of the highway; it is only sufficient proof in the absence of a contrary showing. Johns v. State, 104 Ind. 557.

1881. (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 non-residents 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. See sections 2017-18, 2040, 2220–21.

1882. (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, township, 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.

1883. (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 birds. 1884. (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.

See section 2173.

This section is not unconstitutional on the ground that it prohibits the jury from determining the facts. Morgan v. State, 117 Ind. 569; Voght v. State, 124 Ind. 358. As to the evidence necessary to show that a building was rented for gaming, see Voght v. State, 124 Ind. 358.

Under the statute of 1852 (section 29, 2 R. S. 1876, p. 469), prescribing a penalty for renting a house for gaming, it was necessary to prove that the house was rented for such purpose. Rodifer v. State, 74 Ind. 21.

1885. (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.

1886. (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.

Statutes making the proof of certain facts conclusive proof of guilt, are unconstitutional; but statutes making such proof only prima facie evidence of illegality are valid. Voght v. State, 124 Ind. 358.

1887. (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 subpœna before the court.

1888. (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 place 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.

1889. (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.

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

1890. (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 cases. All other trials must be by jury.

This section is constitutional, and a defendant may waive his right to a trial by jury, except in capital cases. Murphy v. State, 97 Ind. 579.

In capital cases a jury must be called to assess the punishment upon a plea of guilty. Wartner v. State, 102 Ind. 51.

If the court, on a plea of guilty in a capital case, fixes the punishment, the judgment is not void, and the defendant can not be discharged on a writ of habeas corpus, but an appeal must be taken and a reversal of the judgment obtained. Lowery v. Howard, 103 Ind. 440.

1891. (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.

The demand for a separate trial must be made before the trial commences. McJunkins v. State, 10 Ind. 140.

The taking of a change of venue by one joint defendant has the effect of a severance in trials. Shular v. State, 105 Ind. 289.

The court may direct separate trials when justice demands it. Shular v. State, 105 Ind. 289.

It is within the discretion of the court to allow separate trials in cases of misdemeanor. Douglass v. State, 72 Ind. 385.

1892. (1823.) Order of trial.-248. The jury being impaneled and sworn, the trial shall proceed in the following order:

First. The prosecuting attorney must state the case of the prosecution, and briefly state the evidence by which he expects to support it; and he shall then offer the evidence in support of the prosecution.

Misconduct of the prosecuting attorney in his opening statement is not cause for a new trial. Anderson v. State, 104 Ind. 467; Coleman v. State, 111 Ind. 563.

The court should restrain counsel for the state from making improper statements in stating the case to the jury. Anderson v. State, 104 Ind. 467.

If the defendant deems he is injured by the opening statement of counsel for the state, he should move to set aside the submission and discharge the jury. Coleman ". State, 111 Ind. 563.

Courts may direct the employment of counsel to assist the prosecuting attorney. Shular v. State, 105 Ind. 289; Keyes v. State, 122 Ind. 527.

Second. The defendant, or his counsel, may then state his defense, and offer evidence in support thereof.

It is error to require the defendant to state his defense to the jury before the evidence on the part of the state has been introduced. Willey v. State, 52 Ind. 421.

Third. The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case.

If the state introduces evidence impeaching the character of the defendant's witnesses, the defendant may then support the character of his witnesses by new evidence. Clackner v. State, 33 Ind. 412.

Fourth. When the evidence is concluded, the prosecuting attorney and the defendant or his counsel may, by agreement, in open court, submit the case to the court or jury trying the same, without argument. But if the case be not so submitted without argument, the prosecuting attorney shall have the opening and closing of the argument; but he shall disclose, in the opening, all the points relied on in the case; and if in the closing, he refer to any new point or fact not disclosed in the opening, the defendant, or his counsel, shall have the right of replying thereto, which reply shall close the argument in the If the prosecuting attorney shall refuse to open the argument, the defendant or his counsel may then argue the case. If the defendant or his counsel refuse to argue the case after the prosecuting attor

case.

ney has made his opening argument, that shall be the only argument allowed in the case.

Argument to the jury can not be prohibited by the court, but it may regulate the same. Lynch v. State, 9 Ind. 541; Redman v. State, 28 Ind. 205.

Questions of law may be argued to the jury the same as questions of fact. Lynch v. State, 9 Ind. 541; Stout v. State, 96 Ind. 407.

Extracts from law books may be read in argument. Harvey v. State, 40 Ind. 516; Stout v. State, 96 Ind. 407; Klepfer v. State, 121 Ind. 491.

When the defendant fails to testify, it is error for counsel for the state to refer to the fact in argument. Long v. State, 56 Ind. 182.

When the defendant testifies his appearance and conduct while testifying may be commented upon. Huber v. State, 57 Ind. 341.

Improper reference by counsel for the state in argument as to the appearance and conduct of the defendant may be cause for a new trial. Bessette v. State, 101 Ind. 85. Counsel for the state should not in argument refer to other crimes committed by the defendant. Ferguson v. State, 49 Ind. 33; Brow v. State, 103 Ind. 133.

Improper argument by counsel for the state should be objected to at the time, and exceptions taken to the ruling of the court in order to be available on appeal. Richie v. State, 59 Ind. 121; Morrison v. State, 76 Ind. 335; Reeves v. State, 84 Ind. 116.

A judgment will not be reversed on account of misconduct of counsel in argument, unless the substantial rights of the defendant have been prejudiced. Shular v. State, 105 Ind. 289; Boyle v. State, 105 Ind. 469; Norton v. State, 106 Ind. 163; Heyl v. State, 109 Ind. 589; Warner v. State, 114 Ind. 137.

It is improper for counsel for the state to refer to facts within his personal knowledge not proven, and a failure of the court to take proper action in reference thereto will be cause for a new trial. Jackson v. State, 116 Ind. 464.

When the court does all it is asked to do, and all it can do to correct any injury done by improper argument, the matter will not be reviewed by the supreme court. Grubb v. State, 117 Ind. 277.

Argument being largely in the discretion of the court the supreme court will only interfere when there is an abuse of such discretion. Combs v. State, 75 Ind. 215; Morrison v. State, 76 Ind. 335.

Counsel employed to assist the prosecuting attorney may make the opening argument in a cause. Surber v. State, 99 Ind. 71.

The drawing of erroneous inferences from the facts is no cause for complaint. Behler v. State, 112 Ind. 140; Warner v. State, 114 Ind. 137.

Fifth. The court must then charge the jury; which charge, upon the request of the prosecuting attorney, the defendant or his counsel, made at any time before the commencement of the argument, shall be in writing, and the instructions therein contained numbered and signed by the court. In charging the jury he must state to them all matters of law which are necessary for their information in giving their verdict. If he present the facts of the case, he must inform the jury that they are the exclusive judges of all questions of fact, and that they have a right also to determine the law.

When written instructions are requested, it is error for the court to read from the statutes to the jury, or give any oral instructions. Smurr v. State, 88 Ind. 504; Stephen. son v. State, 110 Ind. 358.

Modifications of written instructions must be in writing when written instructions are requested. Lung v. Deal, 16 Ind. 349; Provines v. Heaston, 67 Ind. 482.