tice of such adjourned term to be given, appears at the time appointed and opens court, the proceedings at such an adjourned term are not void, although held at a time when another court of the same circuit might have been in session under the statute, and was in session, presided over by a special judge. As the proceedings were not void, the failure of the appellant to object at the trial was a waiver of all questions as to the regularity of the proceedings at the adjourned term. If he had made an objection before conviction, we should have been faced by a very different question from that which the record presents. It is not necessary for us to decide-nor, indeed, would it be proper for us to do so-what would be the rule if an objection were made, before trial, to proceeding at an adjourned term held under such circumstances as that at which the appellant was convicted.

The conclusion which we have reached does the appellant no substantial injury, for he was tried by the rightful judge, and was denied no right for which he asked. The utmost that can be said is that the adjourned term was irregularly held by the proper judge, and, as the appellant lost no substantial rights by the alleged error of the judge, and made no objection until after trial, we cannot, under the rule declared by our statute and enforced by our decisions, reverse the judgment. From the earliest to the latest of our decisions it has been held that where there is an irregularity in the proceedings, it is waived by a failure to object at the proper time. Our cases carry this doctrine so far as to hold that there may be a waiver of constitutional rights, and in this they are sustained by the great weight of authority. Lowery v. Howard, 103 Ind. —; S. C. 3 N. E. Rep. 124; Thomas v. State, 2 N. E. Rep. 808; Butler v. State, 97 Ind. 378; "Waiver of Constitutional Rights in Criminal Cases," 6 Crim. Law Mag. 182; In re Staff, 23 N. W. Rep. 587; S. C. 21 Cent. Law J. 227, and note. It results from this principle that the failure of the defendant to object before conviction concludes him from questioning the regularity of the proceedings at the adjourned term. This conclusion is in harmony with the spirit of our Criminal Code, which, while it awards to an accused liberal means and ample opportunity to present objections to the rulings of the trial court, requires that all objections should be seasonably presented to that court. The rule is just in itself, and salutary in its practical operation. An accused who voluntarily enters upon a trial without objecting to the regularity of the order appointing the term at which he is tried, and takes the chances of a trial, ought not, after conviction, to be permitted to object that the term was not regularly held, since such a practice would enable a felon to oftentimes defeat justice by securing delay, and it would entail upon the courts and the public an expense and inconvenience that one accused of crime has no right to demand that they should be compelled to bear.

It is the general rule that a brother may lawfully defend his brother when in peril, and, if need be, take life in such defense; and so the law was declared in the instruction of the trial court which is assailed in argument. But this general rule is not without exceptions. Where both the brothers are in fault, and unite in wrongfully bringing on the fatal

rencounter, the general rule does not apply. It would be rank injustice to permit a man who has joined his brother in attacking another, to take the life of the person whom they had wrongfully attacked, at least without retreating, or in good faith attempting to retreat. It may be that if the appellant had not been a participant in the combat he might lawfully have interfered in defense of his brother, for the law allows a brother, in case of need, to defend a brother. Waybright v. State, 56 Ind. 122; 1 Bish. Crim. Law, § 677. But, as there are well-reasoned cases holding, if the brother in whose defense the accused engages is in the fault, and has not retreated, or attempted to retreat, the interference is not justifiable or excusable. Cain's Case, 20 W. Va. 679; State v. Greer, 22 W. Va. 800, see pages 818, 819. In this case, however, we need not go so far as the court did in the cases referred to, for here the instruction proceeds, as well it may under the evidence, upon the hypothesis that both of the brothers were participants and principals in the encounter that resulted in the killing of the deceased. 1 Bish. Crim. Law, § 604; 1 Whart. Crim. Law, § 478. In such a case the accused cannot go acquit on the ground of self-defense if he was himself in fault and so continued. Barnett v. State, 100 Ind. 171; Story v. State, 99 Ind. 413; McDermott v. State, 89 Ind. 187; Presser v. State, 77 Ind. 274. If, however, we were wrong in our construction of the instruction, and in our view of the law, the judgment could not be reversed, for the reason that the contention of the state, stoutly made and earnestly pressed, that the motion for a new trial does not assign for error the giving of the instruction here assailed, must be sustained.

We cannot reverse upon the evidence. Two juries have convicted upon it, two trial judges have sustained these convictions, and when the case was here before upon substantially the same evidence, this court, after adverting to the theory of the defense, said: "At all events, as there is evidence in the record fairly sustaining the verdict, we cannot disturb the judgment of the court below upon the sufficiency of the evidence." We have, notwithstanding the fact that two juries have convicted, and two trial judges approved the convictions, and the further fact that this court has once sustained the contention of the state as to the sufficiency of the evidence, again carefully examined the evidence, and can reach no other conclusion than that it sustains the verdict. There may possibly be mitigating circumstances that would render the exercise of executive clemency proper to mitigate the severity of the punishment; but, however this may be, there is nothing that will justify us in setting aside the verdict. Judgment affirmed.

(105 Ind. 117)

UNRUH v. STATE ex rel. BAUM.

Filed January 26, 1886.

1. APPEAL FROM JUSTICE-PRESUMPTION.

Where a case is appealed from a justice of the peace to the circuit court, in the absence of anything to the contrary, it will be presumed, in favor of the jurisdiction of the circuit court, that the case came into that court by a regular appeal.

2. BASTARDY PROCEEDINGS-RIGHT OF DEFENDANT TO HAVE RELATRIX EX

AMINED-WAIVER.

One against whom bastardy proceedings are instituted has a right to insist that the relatrix shall be present and her examination reduced to writing; but this is a right that may be waived, and where he goes to trial without making any effort to have the relatrix present, he will be deemed to have waived such right.

8. TRIAL-INSTRUCTIONS-WEIGHT TO BE GIVEN CERTAIN EVIDENCE-INVASION OF PROVINCE OF JURY.

It is error for the court to invade the province of the jury, by instructing them as to the credibility of certain witnesses, or the weight to be given their evidence.

Appeal from Porter circuit court.

E. D. Crumpacker, A. D. Bartholomew, J. H. Gillett, and H. A. Gillett, for appellant.

Jones & Jones, for appellee.

ZOLLARS, J. The relatrix filed with a justice of the peace a charge of bastardy against appellant, upon which he was arrested. The justice's record shows that on the day set for trial appellant was present in person and by attorney; that the state was represented by its prosecuting attorney; that the relatrix was not present; that the cause was submitted to the court for trial; and that, there being no evidence offered in support of the charge made by the relatrix, the court found for the defendant, (appellant.) On the day following, a transcript of the proceedings was filed in the circuit court. In that court appellant moved to dismiss the appeal, and to dismiss the case. There was no contention nor showing that an appeal had not been taken. The motion to dismiss the appeal was based upon the sole ground that the transcript of the proceedings in the justice's court does not affirmatively show that an appeal was taken. If an appeal was in fact taken, the failure of the justice to note that fact in his docket is not a sufficient cause for dismissing the appeal. In the absence of anything to the contrary, we must presume in favor of the jurisdiction of the circuit court, by presuming that the case came into that court by a regular appeal. Wolf v. State, 11 Ind. 231; Humble v. Williams, 4 Blackf. 473; Littell v. Bradford, 8 Blackf. 185. See, also, Houk v. Barthold, 73 Ind. 21; Johns v. State, ante, 153, (present term;) Brown v. Anderson, 90 Ind. 93; Ohio & M. R. Co. v. Hardy, 64 Ind. 454; Brownfield v. Weicht, 9 Ind. 394.

The ground upon which appellant contends that the case should have been dismissed is that the relatrix was not examined, and her testimony

reduced to writing by the justice, as provided by the statute. Rev. St. 1881, § 984. It will be observed that on the day set for trial the relatrix was not present. The prosecuting attorney announced himself as ready for trial. Without any objection from appellant, who, with his attorney, was present, and without any effort upon his part to have the relatrix present, and to have her testimony taken and reduced to writing, the case was submitted to the court for trial. The examination of the relatrix, provided by the statute, is for the benefit and protection of the defendant, and he should not be deprived of it by any ingenious practice by those representing the state. The right to such an examination, however, is a right that the defendant may waive. Smith v. State, 67 Ind. 61. In this case appellant must be treated as having waived that right. If he desired an examination of the relatrix, and her testimony reduced to writing, he might have procured a subpoena, and thus had her brought before the court. He was bound to know that the state could appeal, and that the case would thus go to the circuit court without the examination of the relatrix, unless, by some effort of his, that examination was procured. Having made no such effort, he cannot now be heard to complain that the examination was not taken.

Appellant assigned as a cause for a new trial the giving of the fifth, sixth, and ninth of the court's instructions. The ninth is as follows: "Certain admissions claimed to have been made by both the relatrix and also by the defendant are in evidence. Such admissions are competent evidence, and may be of the most satisfactory character, or they may be of the very weakest kind of testimony, depending upon the surrounding circumstances. If you can see from the evidence that the alleged admissions were clearly and understandingly made; that they are precisely identified; that the language is correctly remembered, and accurately repeated by the witness, then such testimony is entitled to great weight. On the other hand, if the person making the admission may not have expressed his or her own meaning clearly and understandingly; or if the witness may have misunderstood him or her; or if the witness had no reason or motive for remembering the exact language used; or if, from lapse of time, it is seen that the witness is liable to be mistaken; or if, from interests, bias, or prejudice, the admission appears to be unreasonable, or colored and exaggerated, then but little reliance should be placed upon this class of testimony.'

This instruction starts out with a statement of what is a fact: that there is evidence of admissions, both by the relatrix and by appellant. Then follows the enunciation of two propositions of law. The first is that if the jury could determine from the evidence that the admissions were clearly and understandingly made; that they were precisely identified; that the language was correctly remembered, and accurately repeated by the witnesses, then, as a matter of law, such testimony was entitled to great weight. The second is that if the person making the admission may not have expressed his or her own meaning clearly and understandingly; or if the witnesses may have misunderstood him or her; or if the witness had no reason or motive for remembering the exact language used; or if, from lapse of time, it is seen that the witnesses are liable to be mistaken; or if, from interest, bias, or prejudice, the admissions appear to be unreasonable, or colored and exaggerated,-then, as a matter of law, but little reliance should be placed upon the testimony of such admissions.

The instruction is substantially a copy of section 200, 1 Greenl. Ev. We have no fault to find with that section as an abstract proposition, but this court has several times held that to embody it in an instruction to the jury is erroneous, because the court thereby declares as a matter of law what ought to be left to the jury to determine as a matter of fact. In speaking of embodying the text of law writers in instructions, this court, in the case of Garfield v. State, 74 Ind. 60, said:

"It is not every statement of the law found in a text-book or opinion of a judge, however well and accurately put, which can properly be embodied in an instruction. The processes of reasoning by which a conclusion is reached, if well made, are appropriate to be found either in text or opinion; but rarely, if ever, is it proper to deliver such reasoning to a jury in the form of instructions."

In the case of Davis v. Hardy, 76 Ind. 272, in speaking of an instruction in all essentials identical with that under consideration, and of the above section from Greenleaf, this court said:

"To give it in a charge as written would, in this state, be an invasion of the jury's exclusive right to judge of the credibility and weight of evidence. It is proper matter of argument that such evidence is subject to imperfections and discredit for the reasons suggested, and the court may direct the jury's attention to the subject. But it is not for the court to say, as a matter of law, in reference to evidence of this kind, given in a particular case, that it is subject to much imperfection; or that it frequently happens that the witness, by unintentionally altering a few expressions really used, gives an effect to the statement completely at variance with what the party did say, or that, when the omission is deliberately made and precisely identified, the evidence is often of the most satisfactory natThese are matters of fact, experience, and argument, but not otherwise the subject of legal cognizance.

ure.

The same question came before the court in the case of Finch v. Bergins, 89 Ind. 360. There, again, the above section from Greenleaf was embodied in an instruction, and given to the jury. The cases of Garfield v. State, and Davis v. Hardy, supra, were fully approved, and the instruction condemned. These cases were all cited and approved in the cases of Newman v. Hazelrigg, 96 Ind. 73; Koerner v. State, 98 Ind. 7; Lewis v. Christie, 99 Ind. 377; Morris v. State, 101 Ind. 560; S. C. 1 N. E. Rep. 70.

The ruling in these cases is supported by authority elsewhere. In the case of Castleman v. Sherry, 42 Tex. 59, in speaking of a charge similar to that under examination, the court said:

"The charge is further objectionable as being upon the weight of the evidence, when the court tells the jury that evidence of the admissions of a party is regarded as dangerous and liable to abuse, etc. Such expressions as these, found in every treatise on evidence, are to be regarded as matters of argument, rather than rules of evidence having the force of law, upon which the court should instruct a jury." See, to the same point, Com. v. Galligan, 113 Mass. 202; Manro v. Platt, 62 Ill. 450; Thomp. Charg. Jur. 60, § 37.

The instruction applies to the declarations and admissions by both the relatrix and appellant, but that does not render it less erroneous, because the court no less invaded the province of the jury. Nor can it be said that the instruction is less harmful to appellant. The jury may have applied one standard to the evidence of admissions by the relatrix, and placed "but little reliance" upon it, and applied the other standard to the evidence of admissions by appellant, and given it "great weight." They may have concluded, under the instructions of the