On a charge of an assault and battery with an intent to commit a felony, the defendant may be found guilty of an assault and battery only. Foley v. State, 9 Ind. 363; Gillespie v. State, 9 Ind. 380; Rose v. State, 33 Ind. 167.

Under a charge of an assault with intent to commit murder in the first degree, there may be a conviction of an assault with intent to commit murder in the second degree. Wall v. State, 23 Ind. 150.

On a charge of assault, or assault and battery with intent to commit murder, a conviction of assault, or assault and battery with intent to commit manslaughter, is proper. State v. Throckmorton, 53 Ind. 354.

Assault and battery is not included in any of the degrees of murder, and a verdict for assault and battery on a charge of murder is a nullity. Wright v. State, 5 Ind. 527. On a charge of an assault and battery with intent to commit murder, there may be a conviction for an assault with intent to commit murder. Keeling v. State, 107 Ind. 563. Under a charge of malicious mayhem, there may be a conviction of simple mayhem, or of an assault and battery. State v. Fisher, 103 Ind. 530.

On a charge of rape, there may be a conviction for an assault and battery. Jones v. State, 118 Ind. 39.

On a charge of rape upon a child under twelve years old, there may be a conviction of an assault and battery with intent to commit rape, without showing resistance on the part of the child. Murphy v. State, 120 Ind. 115.

Persons on trial for an offense are also on trial for all offenses necessarily included in the offense charged. State v. Hattabough, 66 Ind. 223.

When there is a conviction for an offense lesser than the one charged, and a new trial is obtained, there may be a trial for the greater crime. Mills v. State, 52 Ind. 187. See Clem v. State, 42 Ind. 420.

If a verdict is returned finding the accused guilty of a crime less than the one charged, there is in effect a finding of not guilty of the greater crime. Bryant v. State, 72 Ind. 400.

1904. (1835.) One offense included in another.-260. In all other cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information.

Murder in the first degree necessarily includes murder in the second degree. Wall v. State, 23 Ind. 150.

An assault and battery is not necessarily included in the rescue of a prisoner, but if the assault and battery is properly charged in an indictment for rescue, a conviction thereof is proper. Rose v. State, 33 Ind. 167.

An assault and battery is necessarily included in the crime of rape. Richie v. State, 58 Ind. 355; Mills v. State, 52 Ind. 187; Jones v. State, 118 Ind. 39.

An assault and battery and simple mayhem are necessarily included in a charge of malicious mayhem. State v. Fisher, 103 Ind. 530.

When one offense is merged in a greater, a conviction or acquittal of the lesser crime does not bar a prosecution for the larger one. State v. Hattabough, 66 Ind. 223.

1905. (1836.) Effect of conviction or acquittal.-261. When the defendant has been convicted or acquitted upon an indictment or information for an offense consisting of different degrees, the conviction or acquittal shall be a bar to another indictment for the offense charged in the former or for any lower degree of that offense or for an offense necessarily included therein.

Two offenses can not be made out of the same transaction. Laupher v. State, 14 Ind. 327; Fritz v. State, 40 Ind. 18.

A prosecution for larceny bars a prosecution for obtaining the same articles by robbery. Hickey v. State, 23 Ind. 21.

An affray includes any assault and battery committed in the commission of the affray. Fritz v. State, 40 Ind. 18.

If on a charge of murder in the first degree a verdict of guilty of an inferior grade of homicide is returned, there is an acquittal of all higher degrees. Clem v. State, 42 Ind. 420.

When the same act constitutes more than one offense, and the lesser is not necessarily included in the greater offense, a prosecution for one offense will not bar a prosecution for the other. State v. Elder, 65 Ind. 282.

When an offense is merged in a greater, the conviction or acquittal of the lesser crime is no bar to a prosecution for the greater one. State v. Hattabough, 66 Ind. 223.

1906. (1837.) Verdict.-262. When the defendant is found guilty, the jury must state, in the verdict, the amount of fine and the punishment to be inflicted; where the plea is guilty, or the trial is by the court, the court shall assess the amount of fine and fix the punishment to be inflicted.

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

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

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

On a charge of grand larceny the punishment for petit larceny may be assessed. Hoskins v. State, 27 Ind. 470.

A jury must be impaneled to assess the punishment in capital cases. Wartner v. State, 102 Ind. 51; Lowery v. Howard, 103 Ind. 440.

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

If the punishment assessed is illegal, the verdict will be void. Lefforge v. State, 12 Ind. 551.

When the punishment is legal, the supreme court will not interfere on account of its severity. McCulley v. State, 62 Ind. 428; Murphy v. State, 97 Ind. 579.

An accused can not complain because the full amount of punishment is not assessed that ought to have been assessed. Nichols v. State, 127 Ind. 406.

As to the calling of a jury to assess the punishment on a plea of guilty, see Behler v. State, 22 Ind. 345; Eastman v. State, 54 Ind. 441.

Punishment need not be at once assessed on a plea of guilty. Smith v. Hess, 91 Ind.

424.

1907. (1838.) Judgment.-263. When the defendant is found guilty, the court shall render judgment accordingly; and the defendant shall be liable for all costs, unless the court or jury trying the cause expressly find otherwise.

See section 1919.

The judgment can only adjudge such punishment as is assessed by the verdici. Wilson v. State, 28 Ind. 393; Clark v. State, 77 Ind. 399.

If the judgment is not in accordance with the verdict, an objection must be made in the lower court. Skaggs v. State, 108 Ind. 53.

The jury may exempt the defendant from the payment of all costs. State v. Sevier, 117 Ind. 338.

Some reason should exist for the jury relieving the defendant from the payment of costs. Welsh v. State, 126 Ind. 71.

When an adult pleads guilty, judgment should be rendered or he should be retained in custody until he is sentenced. Gray v. State, 107 Ind. 177.

1908. (1839.) Acquittal.-264. When the defendant is acquitted in a criminal action, he is not liable for any costs, except where otherwise provided in this act.

If a defendant is acquitted of a charge, but is held to answer another charge of which he is convicted, the costs made on the first charge can not be taxed against him. Burch v. Dooley, 123 Ind. 288.

When by a judgment of the supreme court the defendant is finally acquitted, no costs are taxed to him, but in other cases he is liable for the costs he makes in such court. Smith v. State, 5 Ind. 541.

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

1909. (1840.) Definition.-265. A new trial is a re-examination of the issues in the same court.

1910. (1841.) Effect.-266. The granting of a new trial places the parties in the same position as if no trial had been had; the former verdict can not be used or referred to, either in the evidence or argument.

This section is constitutional; and where a defendant obtains a new trial, he consents to take it on the terms of the statute. Ex parte Bradley, 48 Ind. 548; Mills v. State, 52 Ind. 187; Veatch v. State, 60 Ind. 291; Patterson v. State, 70 Ind. 341. See Clem v. State, 42 Ind. 420.

1911. (1842.) Causes-Motion when.-267. The court shall grant a new trial to the defendant for the following causes, or any of them: First. Irregularity in the proceedings of the court, or for any order of the court or abuse of discretion by which the defendant was prevented from having a fair trial.

The admission of improper evidence is cause for a new trial. Reinhart v. State, 45 Ind. 147.

Failure to arraign the defendant and have him plead is cause for a new trial. Shoffner v. State, 93 Ind. 519.

Misconduct of counsel for the state, and the action of the court in regard thereto, may be causes for a new trial. Bessette v. State, 101 Ind. 85; Epps v. State, 102 Ind. 539; Brow v. State, 103 Ind. 133; Norton v. State, 106 Ind. 163; Jackson v. State, 116 Ind. 464; Grubb v. State, 117 Ind. 277; Drew v. State, 124 Ind. 9.

Compelling counsel to proceed with a cause at night-time is not cause for a new trial when it is not apparent that injury resulted. Wartena v. State, 105 Ind. 445.

Sending jury out at night-time to deliberate on a cause is within the discretion of the court. McClary v. State, 75 Ind. 260.

If improper remarks are made by the cured by a withdrawal of such remarks.

court in the presence of the jury, the error is Reinhold v. State, 130 Ind. 467.

All instructions given to the jury, and the withdrawal of instructions therefrom, must be in open court and in the presence of the parties. Hall v. State, 8 Ind. 439; Quinn v. State, 130 Ind. 340.

Presence of the bailiff in jury room during deliberations of the jury may be cause for a new trial. Rickard v. State, 74 Ind. 275; Doles v. State, 97 Ind. 555; Clayton v. State, 100 Ind. 201.

Refusal to grant a continuance is not cause for a new trial. Sturm v. State, 74 Ind. 278. See Ostler v. State, 3 App. 122.

Second. When the jury has separated without leave of the court, after retiring to deliberate upon their verdict.

Separation of the jury without leave of court is not cause for a new trial when it appears that no harm resulted to the defendant. Riley v. State, 95 Ind. 446; Creek r. State, 24 Ind. 151; Clayton v. State, 100 Ind. 201; Drew v. State, 124 Ind. 9.

Jurors may separate for necessary purposes when accompained by an officer. Cooper v. State, 120 Ind. 377.

Third. When the jury has received and considered any evidence, paper or document not authorized by the court.

If papers are inadvertently taken by the jury and are not used, it is no cause for a new trial. Bersch v. State, 13 Ind. 434.

The use by a jury of law books in considering a cause is ground for a new trial. Newkirk v. State, 27 Ind. 1; Jones v. State, 89 Ind. 82.

Fourth. When the jury has been guilty of any misconduct tending to prevent a fair and due consideration of the case.

Taking notes of evidence by jurors, after directions by the court not to do so, is cause for a new trial. Cheek v. State, 35 Ind. 492.

If no objection is made to a juror taking notes of evidence, it is no cause for a new trial. Cluck v. State, 40 Ind. 263; Long v. State, 95 Ind. 481.

If jurors, after the submission of a cause, go to a saloon and drink intoxicating liquors, it is a cause for a new trial. Davis v. State, 35 Ind. 496.

Drinking of intoxicating liquors by jurors during the progress of the trial is not cause for a new trial. Pratt v. State, 56 Ind. 179.

The making of false answers by jurors as to their qualifications as jurors constitutes ground for a new trial. Holloway v. State, 53 Ind. 554; Lamphier v. State, 70 Ind. 317; Kennegar v. State, 120 Ind. 176.

Passing the scene of the crime by the jury while out for exercise in charge of a bailiff is no cause for a new trial. Luck v. State, 96 Ind. 16.

The falling asleep of a juror during argument is not cause for a new trial. McClary v. State, 75 Ind. 260.

It should appear that the misconduct of jurors probably injured the complaining party before a verdict should be set aside on that ground. Whelchell v. State, 23 Ind. 89; Medler v. State, 26 Ind. 171; Achey v. State, 64 Ind. 56; Drew v. State, 124 Ind. 9. The supreme court will not weigh the evidence in judging of the misconduct of jurors. Holloway v. State, 53 Ind. 554; De Priest v. State, 68 Ind. 569; Weaver v. State, 83 Ind. 289; Long v. State, 95 Ind. 481; Epps v. State, 102 Ind. 539; Stephenson v. State, 110 Ind. 358; Shular v. State, 105 Ind. 289.

The affidavits of jurors may be received to sustain, but not to impeach, their verdict. Barlow v. State, 2 Blkf. 114; Bennett v. State, 3 Ind. 167; Jones v. State, 89 Ind. 82; Long v. State, 95 Ind. 481; Houk v. Allen, 126 Ind. 568.

The jury should not permit the bailiff to be present during the deliberations of the jury, but if it appears that no injury resulted a new trial will not be granted therefor.

Rickard v. State, 74 Ind. 275; Doles v. State, 97 Ind. 555; Clayton v. State, 100 Ind. 201; Waterman v. State, 116 Ind. 51.

Failure on the part of a juror to disclose that he has defective eyesight may be cause for a new trial. Rhodes v. State, 128 Ind. 189.

Fifth. When the verdict has been found by means other than a fair expression of opinion on the part of all the jurors.

Sixth. Accident or surprise which ordinary prudence could not have guarded against.

The taking sick of a witness after the beginning of a trial is a sufficient cause for a new trial when a postponement of the trial is refused on account of the absence of such witness. Jenks v. State, 39 Ind. 1.

The accused can not claim that he was surprised at the introduction of any legitimate evidence to establish a material fact. Morel v. State, 89 Ind. 275.

An affidavit showing diligence and surprise must be filed when a new trial is requested on the ground of surprise at the testimony of a witness. Dowell v. State, 97 Ind. 310; McClure v. State, 116 Ind. 169.

Seventh. Error of law occurring at the trial.

Eighth. Newly-discovered evidence, material for the defendant, which he could not, with reasonable diligence, have discovered and produced at the trial.

Affidavits showing the facts as to diligence must be filed when a new trial is sought on account of newly-discovered evidence. Presser v. State, 77 Ind. 274; Skaggs v. State, 108 Ind. 53; McClure v. State, 116 Ind. 169; Cooper v. State, 120 Ind. 377.

All the necessary steps must be shown to have been taken to procure the attendance of the absent witness. Marks v. State, 101 Ind. 353.

The affidavit of the witness as to what his testimony will be must be produced, or some good reason shown for not producing it. Gibson v. State, 9 Ind. 264; Shipman v. State, 38 Ind. 549; Quinn v. State, 123 Ind. 59; Vandyne v. State, 130 Ind. 26.

A new trial will not be granted to procure new evidence that is merely cumulative. Harper v. State, 101 Ind. 109; Sutherlin v. State, 108 Ind. 389; Hamm v. Romine, 98 Ind. 77; Pennsylvania Co. v. Nations, 111 Ind. 203.

Morel v. State, 89 Ind.

Nor to procure evidence to contradict or impeach witnesses. 275; Sutherlin v. State, 108 Ind. 389; Hamm v. Romine, 98 Ind. 77; Pennsylvania Co. v. Nations, 111 Ind. 203.

It should appear that the new evidence would probably change the result on another trial. Rainey v. State, 53 Ind. 278; Presser v. State, 77 Ind. 274; Turner v. State, 102 Ind. 425; Cooper v. State, 120 Ind. 377.

If the new evidence shows a strong probability of innocence, a new trial should be granted. Morse v. State, 108 Ind. 599.

If conviction rests on the testimony of an accomplice, and his subsequent confession destroys his evidence, a new trial should be granted. Dennis v. State, 103 Ind. 142.

Ninth. When the verdict of the jury or the finding of the court is contrary to law or the evidence.

If the defendant is found guilty of an offense that is not charged in the indictment, the verdict is contrary to law. McGuire v. State, 50 Ind. 284; Thetge v. State, 83 Ind. 126.

When the evidence fails to sustain the charge in the indictment, a verdict of guilty will be contrary to law. Stout v. State, 78 Ind. 492.