The taking down of oral instructions by a stenographer will not be considered as written instructions. Shafer v. Stinson, 76 Ind. 374.

In giving written instructions, the court may read from the pleadings. Clouser v. Ruckman, 104 Ind. 588.

Oral directions to the jury as to the rejection of evidence, or as to the form of the verdict, may be given when written instructions are requested. Bradway v. Waddell, 95 Ind. 170.

An oral repetition of a written instruction not attempting to state a rule of law may be given when written instructions are requested. Pate v. Wright, 30 Ind. 476; Dodd v. Moore, 91 Ind. 522.

While the court must instruct the jury as to the law, yet the jury may disregard such instructions and determine the law for itself. Williams v. State, 10 Ind. 503; Clem t. State, 31 Ind. 480; Clifford v. State, 56 Ind. 245; McDonald v. State, 63 Ind. 544; Nuzum v. State, 88 Ind. 599.

It is improper to instruct the jury that the law as decided by the supreme court is binding upon the jury. Keiser v. State, 83 Ind. 234.

When requested, it is error to refuse to instruct the jury that it is the exclusive judge of the law and facts. McCarthy v. State, 56 Ind. 203.

But in the absence of a request for such an instruction, a failure to give the same will not be cause for reversing a judgment. Keyes v. State, 122 Ind. 527.

An erroneous instruction is not corrected by a proper one, unless the improper one is withdrawn. Bradley v. State, 31 Ind. 492; McDougal v. State, 88 Ind. 24; Binns v. State, 66 Ind. 428; Heyl v. State, 109 Ind. 589.

If it appears that an erroneous instruction was harmless, a judgment can not be reversed on account of such instruction. Rollins v. State, 62 Ind. 46; Stewart v. State, 111 Ind. 554.

An incomplete instruction may be completed by another instruction. Binns v. State, 66 Ind. 428; Heyl v. State, 109 Ind. 589.

Instructions should not assume that any fact has been proven. Densmore v. State, 67 Ind. 306; Jackman v. State, 71 Ind. 149; Myers v. State, 121 Ind. 15.

If the court enumerates the facts necessary to make out a case, all the material facts must be stated. Snyder v. State, 59 Ind. 105; Bird v. State, 107 Ind. 154.

The court may instruct the jury what facts may be considered for the purpose of establishing another fact. Henning v. State, 106 Ind. 386.

It is not proper for the court to indicate what weight should be given to any evidence. Bird v. State, 107 Ind. 154.

The court should not by an instruction cast suspicion upon any defense or evidence 'offered. Sater v. State, 56 Ind. 378; Albin v. State, 63 Ind. 598; Aszman v. State, 123 Ind. 347.

The jury should not be instructed that common sense is their best guide. Densmore v. State, 67 Ind. 306; Wright v. State, 69 Ind. 163.

It is error to instruct the jury that if the facts set forth in the indictment are proven beyond a reasonable doubt that a verdict of guilty should be returned. Hudelson v. State, 94 Ind. 426.

The court should not instruct the jury that it may determine whether or not the facts stated in the indictment constitute a crime. Anderson v. State, 104 Ind. 467.

Counsel have no right to read and comment in argument on instructions that are to be given to the jury. Stephenson v. State, 110 Ind. 358.

Instructions given to the jury should be considered and construed as an entirety. Gallaher v. State, 101 Ind. 411; Brown v. State, 105 Ind. 385; Kennedy v. State, 107 Ind. 144; Rauck v. State, 110 Ind. 384; Cooper v. State, 120 Ind. 377.

The defendant should have an opportunity to be present when all instructions are given to the jury. Roberts v. State, 111 Ind. 340.

Exceptions to instructions must be shown by a bill of exceptions, and instructions can only be put in the record by a bill of exceptions. Leverich v. State, 105 Ind. 277; Delhaney v. State, 115 Ind. 499; Meredith v. State, 122 Ind. 514.

Sixth. If the prosecuting attorney, the defendant or his counsel desire special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party or his attorney asking them, and delivered to the court before the commencement of the argument. Such charge or charges of the court, or any special instructions, when so written and given by the court, shall in no case be orally qualified, modified, or in any manner orally explained to the jury by the court.

When special instructions are desired, they should be prepared, signed and presented to the court before the commencement of the argument. Surber v. State, 99 Ind. 71; Glover v. State, 109 Ind. 391; Foxwell v. State, 63 Ind. 539; Grubb v. State, 117 Ind. 277; Welsh v. State, 126 Ind. 71.

Special instructions may be refused when they are not correct as presented to the court. Goodwin v. State, 96 Ind. 550.

When the instructions given by the court cover the special instructions asked, the latter may be refused. Harvey v. State, 40 Ind. 516; Wachstetter v. State, 99 Ind. 290; Coleman v. State, 111 Ind. 563; Delhaney v. State, 115 Ind. 499; Grubb v. State, 117 Ind. 277.

1893 (1824.) Reasonable doubt.-249. A defendant is presumed. to be innocent until the contrary is proven. When there is a reasonable doubt whether his guilt be satisfactorily shown, he must be acquitted. When there is a reasonable doubt in which of two or more. degrees of an offense he is guilty, he must be convicted of the lowest degree only.

A reasonable doubt exists when the evidence is not sufficient to satisfy the judgment of the truth of a proposition with such certainty that a prudent man would feel safe in acting upon it in his own most important affairs. Arnold v. State, 23 Ind. 170; Bradley v. State, 31 Ind. 492; Sullivan v. State, 52 Ind. 309; Jarrell v. State, 58 Ind. 293; Garfield v. State, 74 Ind. 60; Brown v. State, 105 Ind. 385.

A reasonable doubt may arise or be created by the want of evidence, as well as by evidence. Wright v. State, 69 Ind. 163; Batten v. State, 80 Ind. 394.

The doctrine of reasonable doubt does not apply to items of evidence, but only to the evidence as an entirety. Wade v. State, 71 Ind. 535.

Each juror should be satisfied of the guilt of the accused beyond a reasonable doubt. Castle v. State, 75 Ind. 146; Aszman v. State, 123 Ind. 347.

Jurors must have conscientious belief of the guilt of the accused, and a conscientious conviction that there is no reasonable doubt of his guilt. Batten v. State, 80 Ind. 394. When there is a reasonable doubt upon the sufficiency of the evidence upon any material question, the defendant should be acquitted. Howard v. State, 50 Ind. 190.

A reasonable doubt as to the sanity of the accused when the crime was committed entitles him to an acquittal. Polk v. State, 19 Ind. 170; Stevens v. State, 31 Ind. 485; Guetig v. State, 66 Ind. 94; McDougal v. State, 88 Ind. 24; Plake v. State, 121 Ind. 433. In prosecutions for criminal libel if a doubt exists as to the truth of the publication the defendant should be acquitted. State v. Bush, 122 Ind. 42.

The doctrine of reasonable doubt does not apply to proceedings for surety of the peace. Arnold v. State, 92 Ind. 187.

It is error to refuse to instruct the jury that the defendant is presumed to be innocent, and that his guilt must be shown beyond a reasonable doubt. Line v. State, 51

Ind. 172; Snyder v. State, 59 Ind. 105; Aszman v. State, 123 Ind. 347; Farley r. State, 127 Ind. 419.

If the defendant desires an instruction as to what is a reasonable doubt he should so request the court, or the matter will be waived. Colee v. State, 75 Ind. 511.

If the court fails to instruct the jury as to a reasonable doubt, exceptions must be taken before the jury retires. Murray v. State, 26 Ind. 141.

1894. (1825.) Juror having personal knowledge.-250. If a juror have any personal knowledge respecting any fact material to the cause he must declare it in open court during the trial. If, during the retirement of the jury, a juror declare a fact which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases the juror making the statement must be sworn as a witness, and examined in the presence of the parties.

1895. (1826.) Jurors instructed at adjournments.-251. When the jurors are permitted to separate, after being impaneled, and at each adjournment, they must be admonished by the court that it is their duty not to converse among themselves, nor suffer others to converse with them on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to

them.

It will be presumed that the jury was properly instructed unless the contrary appears. Evans v. State, 7 Ind. 271.

The jurors should not be permitted to separate during the trial without the consent of the defendant. Quinn v. State, 14 Ind. 589.

If the defendant, having knowledge of the jurors being permitted to separate during the trial, makes no objection, he can not afterwards object. Henning v. State, 106 Ind. 386.

1896. (1827.) Inspection of place.-252. Whenever, in the opinion of the court and with the consent of all the parties, it is proper for the jury to have a view of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the officer and the person appointed to show them the place, shall speak to them on any subject connected with the trial.

On trial of a charge of arson the jury may be sent to view the burned property. Fleming v. State, 11 Ind. 234.

This section is constitutional, and the view of a place by the jury without the presence of the defendant is proper, as such view does not constitute evidence in the cause. Shuler v. State, 105 Ind. 289.

1897. (1828.) Deliberation-Communicating.-253. After hearing the charge, the jury may either decide in court or retire for deliberation. They may retire under the charge of an officer, who must be sworn by the clerk to keep them together in some private and convenient place, without food, except such as the court shall order, and not permit any person to speak or communicate with them, nor do so himself unless by order of the court, or to ask them whether they have

agreed upon their verdict, and return them into court [when so agreed], or when ordered by the court. The officer shall not communicate to any person the state of their deliberations; and if he does he shall be punished as for a contempt, and shall not be further employed as a bailiff in such court.

After the jury has retired for deliberation, any action of the court in withdrawing instructions from the jury, or giving additional ones, must be in open court in the presence of the parties. Hall v. State, 8 Ind. 439; Quinn v. State, 130 Ind. 340.

An officer having charge of a jury should not speak to them, except to ask if they have agreed upon a verdict, unless by order of the court. Rickard v. State, 74 Ind. 275. It is improper for a bailiff in charge of a jury to be in the jury room during the deliberations of the jury, but such fact is not cause for a new trial when it appears that the defendant was not injured by such act. Rickard v. State, 74 Ind. 275; Doles v. State, 97 Ind. 555; Clayton v. State, 100 Ind. 201; Waterman v. State, 116 Ind. 51. The hour when a jury may be sent out to deliberate upon a case is within the discretion of the court. McClary v. State, 75 Ind. 260.

1898. (1829.) Verdict-Polling jury.-254. When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and, if all appear, their verdict must be rendered in open court. If all do not appear, the rest must be discharged without giving a verdict, and the cause must be tried again at the same or the next term. The defendant shall have the right, in all criminal cases, to have the jury polled.

See section 1906.

The right to have the jury polled is waived by not making the request before a discharge of the jury. Short v. State, 63 Ind. 376.

If the jurors are all present, a failure to call their names is not an available error. Norton v. State, 106 Ind. 163; Short v. State, 63 Ind. 376.

66

A verdict of guilty need not say as charged in the indictment." Rollins v. State, 62 Ind. 46.

The use of the word "sentenced" instead of "imprisonment," in fixing the punishment, is immaterial. O'Herrin v. State, 14 Ind. 420.

The use of the word "punishment" instead of "fine" will not affect the validity of the verdict. Beggs v. State, 122 Ind. 54.

When the death penalty is assessed the verdict need not specify the manner of execution. Greenley v. State, 60 Ind. 141.

If a portion of the punishment fixed is illegal, so much of the verdict may be disregarded. Veatch v. State, 60 Ind. 291. See Steel v. State, 26 Ind. 82.

On a charge of grand larceny a verdict assessing the penalty for petit larceny will not be erroneous. Hoskins v. State, 27 Ind. 470.

If the same crime is charged in different counts, a general verdict may be returned, which is equivalent to a finding of guilty on all the counts. Frolich v. State, 11 Ind. 213; Merrick v. State, 63 Ind. 327; Lovell v. State, 45 Ind. 550; Brown v. State, 105 Ind. 385.

If there are good and bad counts it will be presumed that judgment was entered upon the good counts. Enwright v. State, 58 Ind. 567; Powers v. State, 87 Ind. 97.

If a verdict is founded upon a bad count, the judgment will be reversed. Enwright v. State, 58 Ind. 567.

A verdict of guilty on one count amounts to a verdict of not guilty on the others.

Weinzorpiin v. State, 7 Blkf. 186; Bittings v. State, 56 Ind. 101; Short v. State, 63 Ind. 376; Bonnell v. State, 64 Ind. 498; Dawson v. State, 65 Ind. 442.

When objections are not made, the jury may seal up a verdict, separate, and afterwards return it into court. Jarrell v. State, 58 Ind. 293; Clayton v. State, 100 Ind. 201. When the charge is assault and battery with the intention to commit manslaughter, the verdict need not specify whether it was voluntary or involuntary manslaughter. Brown v. State, 111 Ind. 441.

The jury may be directed to retire and correct a defective verdict, even though the jury had separated after agreeing upon a verdict. Pehlman v. State, 115 Ind. 131. Informalities in verdicts may be corrected by the jury in the presence of the court. McGegg v. State, 4 Blkf. 101.

It will be presumed the defendant was in court when the verdict was returned. Rhodes v. State, 23 Ind. 24; Welsh v. State, 126 Ind. 71.

No person except a judge can receive a verdict, even with the consent of the defendant. McClure v. State, 77 Ind. 287; Quinn v. State, 130 Ind. 340.

1899. (1830.) Wrong offense charged.-255. When it appears, at any time before verdict or judgment, that a mistake has been made in charging the proper offense, or that he is guilty of an offense not charged, the defendant shall not be discharged, if there appear to be good cause to detain him in custody; but the court must recognize him to answer to the offense and, if necessary, recognize the witnesses to appear and testify.

1900. (1831.) Trial in wrong county.-256. When it appears, at any time before verdict or judgment, that the defendant is prosecuted in a county not having jurisdiction, the court may order the venue of the indictment or information to be corrected, and direct that all the papers and proceedings be certified to the proper court of the proper county, and recognize the defendant and witnesses to appear at such court, on the first day of the next term thereof; and the prosecution shall proceed in the latter court in the same manner as if it had there commenced.

1901. (1832.) Jury discharged.-257. When a jury has been impaneled in either case contemplated in the last two preceding sections, such jury may be discharged without prejudice to the prosecution.

1902. (1833.) Minor's imprisonment.-258. When any person under the age of twenty-one years shall be convicted of any crime the punishment for which is imprisonment in the state prison, imprisonment in the county jail for any determinate period may be substituted.

See sections 8307, et seq.

When the penalty affixed is only applicable to a minor, minority will be presumed. Rose v. State, 82 Ind. 344.

1903. (1834.) Verdict in case of different degrees.-259. Upon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto or of an attempt to commit the offense.

Under an indictment for murder, the defendant may be found guilty of manslaughter. Dukes v. State, 11 Ind. 557; Carrick v. State, 18 Ind. 409; Powers v. State, 87 Ind. 144.