Would the defendant be heard in making a claim that Nov. Term, such discharge was an acquittal? We think not.

1859.

V.

In regard to the degree of formality with which consent McCORKLE must be expressed, we need not here inquire; for in this THE STATE. case the highest degree characterized it. It was given in the presence, and with the approbation, of the prisoner's counsel, and solemnly entered upon the record of the Court.

In most cases, acquiescence, with knowledge, and without objection, estops a party to deny consent to the various steps taken during the progress of the trial of a cause. Burton v. Ehrlich, 15 Penn. St. R. 236.-2 Wat. Grah. on New Trials, 195.-Romaine v. The State, 7 Ind. R. 63.

We here express no opinion as to whether this rule would be extended to the discharge of a jury.

It is further objected that the transactions in this cause occurred on Sunday; but the law allows a verdict to be returned on that day, and, as an incident, authorizes the Court to sit on that day to receive it, and to receive any motion or order touching it, and the discharge of the jury rendering it.

At a subsequent term, the defendant was again brought up for trial. He made two successive applications for a change of venue, the first of which was granted, the second, denied. Error cannot be assigned on these rulings. Perk. Pr. 60.

He applied for a continuance. It was denied. He repeated the application on the same ground, upon a second affidavit. It was denied.

Courts, on account of the temptation thus held out to perjury, will scarcely tolerate a second application, on the same ground, at the same term, for a continuance. Perk. Pr. 257. See Kirby v. Cannon, 9 Ind. R. 371. The ground in this case was the absence of a witness. But the second affidavit was clearly insufficient, as was the first, because it failed to show due diligence; and it did show that the facts expected to be proved by the absent witness could be proved by other witnesses, if they existed; and we may

1859.

MCCORKLE

V.

Nov. Term, presume that it appeared to the Court, on the motion for a new trial, that they had been proved if they could be. The foregoing motions having been disposed of below, THE STATE. the remainder of the day was consumed in impanneling a jury. The jury being sworn and charged, the Court adjourned. At the meeting of the Court on the following day, after the reading of the minutes, hearing of motions, &c., the cause was called up, the jury being in the box, but the defendant was discovered to be not present; whereupon his counsel, G. W. and J. B. Julian, Esqrs., arose and announced to the Court that the defendant was not, and would not be present, and the Court had nothing to do but to discharge the jury and terminate the trial. They then withdrew from the cause, and left the court-house. The Court thereupon issued a bench-warrant for the defendant (See 2 R. S. p. 378, § 125), appointed counsel to act in his behalf, and proceeded with the trial. On the following morning the defendant resumed his place at the bar, accompanied by the Hon. C. B. Smith, as counsel, who acted with Hon. W. P. Benton and Michael Wilson, Esqr., those appointed by the Court, and the examination of witnesses proceeded. No application was made for the reëxamination, in course, of the witnesses who had been examined, but the parties called such as they chose to, and the examination of no one was refused. The cause was given to the jury at the hour for supper, and the jury returned a verdict of guilty, after some two hours' deliberation. The verdict was read by the Court, the defendant being present, who thereupon interposed a motion for a new trial, and prepared written reasons why it should be granted, and the Court adjourned.

On the following morning, the motion for a new trial was argued and overruled, as was also a motion in arrest, and judgment pronounced upon the verdict. It is assigned for error that the Court erred in proceeding with the trial during the absence of the defendant.

The constitution and laws provide that a defendant in a criminal case shall be present at his tria!. This is for a two-fold object

1. That the defendant may have the opportunity of Nov. Term, meeting the witnesses and jury face to face, aud of direct

ing the course of his trial.

1859. MCCORKLE

V.

2. That the state may be in possession of his person so THE STATE. that judgment may be executed thereon.

Now, the question is, are not these provisions, so far as they are in favor of the defendant, designed to confer a privilege which he may waive? He can waive a trial altogether, and plead guilty. He can waive the constitutional and legal privilege of trial by jury. He can waive the constitutional and legal privilege of being a second time put in jeopardy. And shall it be said that he cannot waive his privilege of being present when his witnesses are examined, or any one of them? Then did he, as a question of fact, make such waiver in this case? If he had voluntarily arisen in Court and asked to be absent in the custody of an officer or otherwise, for a period of time, requesting that the trial should proceed in his absence, the waiver would be clear. But how does such a step differ, in substance, from a voluntary departure without asking that the trial shall stop? In one case the consent is vocally, in the other, tacitly, but equally clearly, expressed.

In The Commonwealth v. Stowell, 9 Met. 572, the Court say, in reference to an erroneous ruling on the trial below, that as the defendant had an opportunity, but failed to avail himself of it on the trial, of making his objection, his acquiescence was a waiver, and estopped him to raise it afterwards.

In Mullinix v. The State, 10 Ind. R. 5, a capital case, the prisoner was held to have waived errors below by silent acquiescence, was not heard upon them in this Court, and was executed.

We are forced to the conclusion, then, that the assignment of error we are now considering, cannot avail the appellant.

Indeed, the common-law practice does not seem to have been materially departed from in this case.

In Rex v. Streek, 12 Eng. Com. Law R. 195, a prosecution for an assault with intent to commit a rape, the pri

V.

THE STATE.

Nov. Term, soner fainted during the examination of the prosecuting 1859. witness, and was borne out of Court. The trial proceeded MCCORKLE for a time in his absence, when PARK, J., doubted if he Could go on in the prisoner's absence, he not being in a situation to consent; and the Court being in doubt whether his counsel, without his authority, could consent for him, adjourned. When the prisoner had recovered, the trial was resumed, and PARK, J., said the prosecuting witness should be examined again if either party desired it, but her reëxamination was waived, and the trial proceeded to a conviction of the defendant.

We proceed to another point.

The indictment in this case was for grand larceny, and charged, with proper description, the stealing, at the date of the indictment, of 3,000 dollars of current bank notes, 2,000 dollars in gold coin, and 1,000 dollars of silver coin. The evidence tended to prove a succession of acts of larceny, whereby an aggregate of between 15,000 and 20,000 dollars was, in all, abstracted from the bank in which the thefts were perpetrated.

The Court charged the jury that if they believed, beyond a reasonable doubt, that the defendant, by any one act of theft, within, &c., feloniously stole, &c., an amount of the bills and coin charged, or of either singly, of the value of 5 dollars or upwards, they might find him guilty of grand larceny; if of less than the value of 5 dollars, of petit larceny. The jury found him guilty of grand larceny. It is contended that the state was bound to prove a larceny of the exact sums named in the indictment, or fail entirely in the prosecution. We do not think so, and have no doubt that the instruction expressed the law. See 2 Wat. Grah. on New Trials, 55.

It is assigned for error, that the Court did not, in proceeding to pass judgment upon the verdict, explain to the prisoner its contents, and ask him what he had to say why judgment should not be pronounced, as required by 2 R. S. p. 378, § 126. But, in this case, it appears that the verdict was explained to the defendant, and that, through his counsel, he said much upon his motions for a new trial and

Nov. Term, 1859.

McCORKLE

V.

in arrest, against the rendition of judgment. He made no objection below that he had not been sufficiently heard; and where the prisoner speaks without being asked, we take it that the necessity of asking is superseded. The THE STATE. section can have application where the defendant, on the return of the verdict, takes no steps, and judgment passes immediately thereon.

Another point was made. It was urged that the absence of the defendant and his counsel during a part of the trial, under the circumstances attending it, prejudiced his case with the jury. This is likely; but that absence was voluntary and deliberate, and manifestly for the no very worthy object of defeating a trial and baffling the administration of justice. The consequences were defiantly sought and accepted; they should now be silently borne.

Per Curiam.-The judgment is affirmed with costs.

C. B. Smith, W. P. Benton, W. J. Smith, J. B. Julian, and M. Wilson, for the appellant.

J. E. Mc Donald, Attorney General, for the state.