counsel," where it appears that he proceeded with his argument without any limitation as to time. 3. SAME-PERSONS OF WEAK MIND-RESPONSIBILITY. If one is of sound mind, he is responsible for his criminal act, although his mental capacity may be weak or his intellect of an inferior order. Appeal from Jasper circuit court. F. W. Babcock, for appellant. Walker & Phares, for appellee. MITCHELL, J. The grand jury of Jasper county, on the eighth day of January, 1885, presented to the circuit court, by indictment in due form, that one Weibern Wartena, on the eighth day of October, 1884, did unlawfully, feloniously, purposely, and with premeditated malice, kill and murder one John Dreger. Upon being arraigned the accused pleaded "not guilty," with a special plea in which his insanity was alleged. The issue thus made having been submitted to a jury, a verdict finding the defendant guilty as charged, and assessing against him the death penalty, was returned. Overruling a motion for a new trial, judgment was pronounced on the verdict by the court. The causes assigned in the motion for a new trial were: (1) Irregularity in the proceedings of the court, and abuse of discretion by which the defendant was prevented from having a fair trial, the particular grounds of irregularity being specified. (2) Error of law occurring at the trial, in that the court erred in giving certain instructions to the jury. (3) That the verdict of the jury was contrary to the evidence and the law. (4) Irregularity in the proceedings of the court, and in the conduct of the prosecuting attorney, specifying the particulars in which it was claimed the proceedings of the court and the conduct of the prosecutor were irregular and prejudicial to the defendant. The only error assigned and relied on for a reversal is the overruling of appellant's motion for a new trial. As respects the irregularity and abuse of discretion attributed to the court, and the alleged misconduct of the prosecuting attorney, it may be said, without reciting the facts set out in the bill of exceptions in detail, the error complained of in that regard is predicated on substantially the following: It appears that after the evidence was closed one of the counsel for the accused concluded the opening argument for the defense at 6 o'clock on Friday evening of the last week of the term. The court announced that a recess would then be taken for one hour, until 7 o'clock, at which time the argument on behalf of the accused would be proceeded with. The principal counsel for the accused thereupon informed the court that the closing argument for the defendant devolved upon him; that he was not able to attend a night session because of fatigue induced by constant and arduous labor in court in day-time and from loss of sleep consequent upon attendance upon members of his family who were sick at night; that from excessive exertion in court, and with attendance upon his family, he was worn out and unfit to make an argument that night. Upon these considerations urged by counsel a postponement of the argument until morning was requested. The court recognizing the hardship, nevertheless reminded counsel that it was near the close of the term, and that a large amount of record was to be read and signed. The prosecuting attorney thereupon urged the holding of a night session, so that he might make the closing argument, and the case might be given to the jury the next morning in time to enable him to take the 11 o'clock train for his home. The request for a postponement was overruled, and it was ordered, over the defendant's objection and exception, that the trial be proceeded with at 7 o'clock, at which time the court required defendant's counsel to proceed with the argument. It is recited in the bill of exceptions that the court did not require counsel "to conclude his argument, but only to begin the same and proceed as far as was convenient for him to do at said night session, the urgent business of the court pending and unfinished absolutely requir ing the holding of a night session, and that this trial be proceeded with." During the course of the argument, which was proceeded with according to the order of the court, counsel for accused desired to make reference to a paper which had been read in evidence. Not being able to find the paper, he was informed that it was in the possession of the prosecutor, who with leave of the court, and without the consent of defendant or his counsel, had absented himself from the court-room and gone to his hotel, leaving his deputy, who had assisted him, in charge of the cause. When informed that the prosecutor had the paper for which inquiry was made, the court proposed to send a bailiff for it, but counsel said it was not necessary, as it had been commented upon by his associate in the opening argument. During the closing argument on behalf of the state the prosecutor stated to the jury that he did not hear all of the argument on behalf of the accused, for the reason that, being tired, he had gone to bed at his hotel, and was not present during all the night session. Upon the facts thus presented it is elaborately argued that the constitutional privilege guarantied in all criminal prosecutions, that the accused shall have the right "to be heard by himself and counsel," was invaded. With respect to the question presented, while admitting to the fullest extent the sacredness of the right thus guarantied, it is nevertheless the undoubted province of the nisi prius courts, in the exercise of a sound discretion, to regulate the course of business during the progress of trials. Included in this is the right, during the term, in a proper way, to control its own sittings. The request of counsel for a postponement, based upon the reasons assigned, must have appealed at once to the clemency and consideration of the court, and we must suppose that under any other than extraordinary circumstances a postponement as requested would have been conceded. Some considerations looking to the necessity of reaching a determination of the case are disclosed by the record, and others not disclosed, but known to the court, may have rendered an evening session desirable and necessary if it could be held without detriment to the rights of the accused. Notwithstanding the unfavorable situation of counsel, the record discloses that he addressed the jury without limitation as to time, and, for all that appears, said all that could be said in extenuation of the crime with which the accused was charged. The question, there fore, at most, relates to the personal discomfort of and exactions upon counsel; the imposition of labor when rest was needed. It does not rise to the degree of affecting any right of the accused; and until it rises to that level it cannot become a subject for our consideration. Any attempt on the part of this court to regulate mere questions of courtesy between counsel, or between the nisi prius courts and counsel, could result in nothing more than to introduce confusion and embarrassment into the administration of public justice. We cannot be made the arbiter in such disputes. So far as the record informs us, no legal right of the appellant was invaded. The order directing a night session, and the continuance of the argument then in progress, since it does not appear that the accused was thereby deprived of the fullest presentation of his defense by counsel, cannot be deemed an abuse of discretion on the part of the court. The absence of the prosecutor during the argument of counsel, after urging a night session, is complained of. This, as also his reference to it in his closing argument to the jury, is a question of courtesy and propriety. These subjects must be left where they properly belong,-to that sense of propriety which every gentleman at the bar is supposed to cultivate and manifest under all circumstances. We must presume, therefore, that the temporary absence of the prosecutor was upon sufficient grounds, and whether it was or not is a question which cannot be determined on this appeal. The only other ground upon which error is predicated involves the eleventh instruction given upon the request of the state. It is as follows: "Mere weakness of mind does not excuse the commissioner of crime. If one is of sound mind he is responsible for his criminal act, even though his mental capacity be weak or his intellect of an inferior order." The instructions, taken together, presented the law of the case to the jury with accuracy and precision. Besides, the one complained of is correct in the abstract, and was applicable to evidence in the case. The law does not undertake to measure the intellectual capacities of men. Imbecility of mind may be of such a degree as to constitute insanity in the eye of the law, but mere mental weakness, the subject being of sound mind, is not insanity, and does not constitute a defense to crime. The law recognizes no standard of exemption from crime less than some degree of insanity or mental unsoundness. Immunity from crime cannot be predicated upon a merely weak or low order of intellect coupled with a sound mind. Somers v. Pumphrey, 24 Ind. 231; Patterson v. People, 46 Barb. 625; Busw. Insan. par. 8. No question is made upon the sufficiency of the evidence to sustain the finding of the jury. We find no error in the record. The judgment is accordingly affirmed. HUSBAND AND WIFE-DIVORCE-CHANGE OF VENUE FROM COUNTY. The provisions of the Civil Code in regard to change of venue are applicable to divorce proceedings, and a change may be taken, in a proper case, not only from the judge, but also from the county. Musselman v. Musselman, 44 Ind. 106, overruled. ́ ELLIOTT, J., dissents; MITCHELL, J., doubts. Appeal from Kosciusko circuit court. Frazer & Frazer, A. G. Wood, and R. B. Encell, for appellant. ZOLLARS, J. The court below awarded to appellee a divorce, alimony, and the custody of the children. Appellant prosecutes this appeal, and insists that the judgment should be reversed because the trial court overruled his motion for a change of venue from the county. That motion was based upon an affidavit in which the appellant stated that he could not have a fair and impartial trial in Kosciusko county, for the reason that appellee had an undue influence over the citizens of that county, and for the reason that an odium attached to him in that county on account of local prejudice against him. The above affidavit states the causes for a change of venue from the county as those causes are provided and stated in the Code of Civil Procedure. Rev. St. 1881, § 412. That section provides as follows: "The court in term, or the judge thereof in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit showing one or more of the following causes: * **Third, that the opposite party has an undue influence over the citizens of the county, or that an odium attaches to the applicant * * * on account of local prejudice; * ** seventh, when either party shall make and file an affidavit of the bias, prejudice, or interest of the judge before whom the said cause is pending." The divorce act contains no provision for a change from the judge, nor for a change of venue from the county. The above section of the Civil Code, it will be observed, provides for a change of venue in civil actions. We are thus met in limine with the one question in the case, viz.: Is a divorce case a civil action in such a sense that the above section of the Code of Civil Procedure is applicable thereto? In the recent case of Powell v. Powell, 104 Ind., S. C. 3 N. E. Rep. 639, after a careful examination of the question, it was held that where the procedure is prescribed in the divorce act, that should be pursued, and not the Civil Code; that, so far as a procedure is provided in that act, it may be called a special proceeding; and that, where it is apparent that the legislature intended that certain sections of the Civil Code should not apply in divorce cases, they will not be applied. It was further held that, under the Code, divorce cases are, in some sense at least, "civil actions;" that the rules of pleading and practice provided in the Civil Code will apply to them, except to the extent that a different procedure may be provided in the divorce act, and to the extent that it may be apparent that the legislature intended otherwise. As a result of these holdings, it was further held that the above section of the Civil Code, providing 'Rehearing denied, 5 N. E. 768. for a change from the judge, is applicable to divorce cases, and that, upon the filing of the proper affidavit under that section in any case, the change must be granted. We can see no reason why the reasoning and conclusion in that case are not applicable and controlling here. Changes of venue are provided for in order that parties litigant may have fair and impartial trials, and hence the provision for a change from an interested or biased judge, and hence, also, the provision for a change of venue from the county where one of the parties may have an undue influence over the citizens, or where an odium may attach to one of the parties, or to his cause of action or defense, on account of local prejudice. The parties to a litigated case are entitled to a trial in a forum where the scales of justice may balance evenly, unaffected by the influence of either party, or the odium that may result from local prejudice. We can think of no case where this is more important than in a divorce case. Property is involved in the settlement of alimony. It has recently been held, too, by this court, reasserting former rulings, that all of the property rights of the parties, as between themselves, of whatever nature, must be settled in the divorce proceeding, and that they will be presumed to have been so settled. Rose v. Rose, 93 Ind. 179; Behrley v. Behrley, Id. 255. More than property is involved in the adjudication that shall sunder the marital relation, fasten upon one of the parties, it may be, the brand of dishonor, break up the children's home, and deprive one of the parties of their society and companionship. It can hardly be supposed that the legislature intended that such cases, fraught with such consequences, and in which the public have an interest aside from the parties, should be tried in a less impartial forum than ordinary civil actions, involving property only, and it may be a small amount of property. The more rational conclusion would seem to be that the intention was that such cases should be tried in impartial tribunals; and that, as no provision is made in the divorce act for reaching such tribunals by a change of venue when necessary, the intention was that resort might and should be had to the Code of Civil Procedure. There is nothing in the divorce act to show or to indicate an intention on the part of the legislature that the above section of the Code, providing for a change of venue from the county, should not be applicable to a proceeding for a divorce, in a proper case, unless it be the facts that no such change is provided for in that act; that the case must be commenced in the county where the plaintiff resides, and the fact that the case is to be tried by the court without a jury. If it be said that the fact that no such change is provided for in the divorce act shows such an intention, then it may be answered that the act just as clearly shows an intention that in a divorce proceeding there shall be no demurrer, no continuance, no motion for a new trial, no exceptions, no bill of exceptions, and no appeal to the supreme court, because none of these are provided for in that act. For these several steps in the procedure it is absolutely necessary to look to the Civil Code. The uniform practice has been to thus look to that Code, and thus divorce |