14 Tex. App. 392. A striking illustration of the doctrine that a defendant in a criminal case may waive a constitutional right is supplied by those cases which hold that, where an accused takes a new trial under a statute, he waives his right to insist upon the constitutional provision prohibiting a citizen from being put in jeopardy twice for the same of fense. In Veatch v. State, 60 Ind. 291, the theory of the appellant was that, having been tried on an indictment charging him with murder, and having been convicted of manslaughter, he could not again be tried for murder, but the court denied the correctness of the theory, and held that he might be tried for the greater offense. It was there said, among other things: "Now, it would seem that if a party takes a new trial in a criminal case, he takes it on the terms prescribed by the statute and consents to be placed in the same position as if no trial had been had." Other cases assert a like doctrine. Morris v. State, 1 Blackf. 37; U. S. v. Perez, 9 Wheat. 579; State v. Davis, 80 N. C. 384; Conn v. Arnold, 6 Crim. Law Mag. 61; Lesslie v. State, 18 Ohio St. 390; Livingston's Case, 14 Grat. 592; U. S. v. Harding, 1 Wall. Jr. 127; State v. McCord, 8 Kan. 232; S. C. 12 Amer. Rep. 469. Another illustration is supplied by the cases which hold that where the statute so provides a jury trial may be waived. Murphy v. State, 97 Ind. 579; In re Staff, 6 Crim. Law Mag. 828. The cases which hold that an accused may voluntarily waive his right to be present at the trial, or may forfeit it by misconduct, furnish still further illustrations of the doctrine we are considering. McCorkle v. State, 14 Ind. 39; State v. Wamire, 16 Ind. 357; Fight v. State, 7 Ohio, 181; Barton v. State, 67 Ga. 653; S. C. 44 Amer. Rep. 743; U. S. v. Davis, 6 Blatchf 464. It would not be difficult to add many authorities to those we have cited, but we deem them amply sufficient to sustain our proposition that the statute under discussion is not unconstitutional.

Assuming, as we feel satisfied we may do, that the statute is constitutional, and assuming that we have correctly construed the statute, there can be no question that the trial court committed no error in sending the jury, at the appellant's request, to view the place where the homicide was committed.

A new trial is asked upon the ground that one of the counsel for the state was guilty of misconduct in the argument to the jury. There are different phases of this question, and we will dispose of them as they are presented by the record. The bill of exceptions thus presents one phase of the question:

"Mr. Anderson in his closing argument said: 'Mr. Thompson talks about the kindness with which he treated the memory of Billy Lane; that he did not attack it, and only brought out the conduct of Billy Lane on the night he was killed, because it was a part of the transaction and circumstances culminating in his death. Gentlemen of the jury, if Mr. Thompson could have found any proof to show anything against the character of Billy Lane, he had the right to introduce it. He had the right to prove that Billy Lane was a desperate, quarrelsome, and dangerous man. Any evidence of that kind would have been competent and proper. But we, gentlemen of the jury, were precluded by the law from attacking the character of defendant. We were not allowed to show what the character of defendant was.' Whereupon the defendant's counsel objected that the state's attorney was improperly commenting upon the character of the defendant, and was endeavoring to argue by innuendo that the character of the defendant

was bad. Whereupon the court remarked that 'the character of the defendant is not in question, and is not to be commented upon.' The said Albert B. Anderson thereupon said: 'I have not commented upon his character. I was just going to say, gentlemen of the jury, that while we were precluded by the law from showing what the character of the defendant was, it appeared in evidence from the defendant's own witness what the character was.' To which last statement of the said Albert B. Anderson, and also to the whole of the aforesaid statement so made, the defendant at the time excepted."

So far as the prosecuting attorney's comments upon the right of the defendant to show the character of the deceased are concerned, we need only say that no fault can be found with them, for it is the law that in the particulars named the character of the deceased may be proved, and it was not an unreasonable inference that if it had been bad the defendant would have given evidence to that effect. Nor was the counsel in error in saying that the state had no right to attack the character of the defendant, although, as the court rightly directed the jury, his character was not "in question, and should not be commented on." Nor was there material error in the statement that the character of the accused was shown by the testimony of his own witnesses. There are cases where the character, or, more strictly speaking, the disposition, of a person accused of crime may appear from the testimony, and there was evidence in this case tending to show the disposition of the defendant. Where facts are before a jury, it is proper for counsel to draw inferences from them, and, even though they proceed illogically, the error will not require or justify a reversal. It is not easy to define the boundary between fair debate and misconduct, but we cannot say that the line was passed in this instance, in what was said as to what the evidence established. In the case of Proctor v. De Camp, 83 Ind. 559, we said:

"There was evidence, in the case before us, upon which the appellee's counsel had a right to comment. Granting that he drew from it an unauthorized conclusion, or that he gave it a wrong coloring and meaning, he was still within the evidence, and when this is so courts cannot interfere. If counsel go beyond the evidence, and bring in foreign and unproved matters, courts should interfere, and if the trial court does not interfere, and the matter improperly brought before the jury is of a material character, the court may reverse the judgment; but it is not every violation of the rules governing the discussion of causes before the jury that will entitle the complaining party to have the verdict set aside; for, if the statement be an unimportant one, or one not likely to wrongfully influence the jury, the verdict will be upheld.'

"

This is the rule declared and enforced in Combs v. State, 75 Ind. 215; in Morrison v. State, 76 Ind. 335; and in Epps v. State, 102 Ind. 539; S. C. 1 N. E. Rep. 491; Anderson v. State, ante, 63.

This case differs very materially from the cases of Brow v. State, 2 N. E. Rep. 299, and Bessette v. State, 101 Ind. 85, for in those cases the counsel did not simply draw a wrong inference from the facts, or erroneously state a proposition of law, but in one of these cases the counsel assumed the position of a witness by stating very material facts, and in the other the counsel not only usurped the place of a witness, but he also singled out and assailed one of the jurors. There is still another distinguishing feature, and that is this: here the court correctly stated the law to the jury, saying that the question was not before them, and must

not be discussed, while in the cases referred to the court declined to interfere, and neither corrected nor rebuked the counsel.

The other phase of the question presented by the assignment in the motion for a new trial, that the state's counsel was guilty of misconduct, is of a somewhat different character from that just discussed, but still we think that it falls within the same general principles. The facts upon which the alleged improper statement of the counsel for the state was based were collateral to the principal and controlling questions in the case, and the statement was made in response to a statement of defendant's counsel. We do not think that it can be justly said that the statement of the prosecuting attorney upon a merely collateral matter worked an injury to the substantial rights of the appellant, and it is only in cases where there is a substantial injury to the appellant that we can reverse. As was said in Morrison v. State, supra:

"If, for every transgression of the prosecuting attorney beyond the bounds of logical or strictly legal argument, the defendant could claim a new trial, few verdicts would stand, and the administration of criminal justice would become impracticable."

What was said in Combs v. State, supra, bears so directly upon the question, as we here encounter it, that we quote from the opinion in that

case:

"If every immaterial assertion or statement which creeps into an argument were to be held ground for reversal, courts would be so much occupied in criticising the addresses of advocates as to leave little time for anything else. Common fairness requires that courts should ascribe to jurors ordinary intelligence, and not disregard their verdicts because counsel may have made some general statements not supported by evidence. Of course, there may be cases where the matters stated are so weighty and important as to do the accused injury, and whenever this is so the appellate court should not hesitate to adjudge a reversal."

In this instance it is evident from the character of the counsel's statement, from the matter upon which it was based, and from the cause which called it out, that we ought not to reverse the judgment of the trial court.

We have given the evidence a careful study, and are convinced that the defendant was convicted of the lowest grade of homicide that the law and the evidence will warrant. There is evidence strongly tending to show that the killing was not only malicious, but that it was also premeditated. The first quarrel between the appellant and the deceased took place quite a long interval of time before the fatal shot was fired, and there is evidence strongly tending to show that the appellant, after leaving the place where the first quarrel occurred, returned for the purpose of renewing it, and of doing the deceased great bodily harm, if not of taking his life. If the evidence adduced by the state was credited by the jury, and to us it seems far more credible than that adduced on the part of the defense, the verdict of manslaughter is a mild one, and was not influenced in any degree by the remark of the prosecutor. The trial court should promptly check any departure from fair debate, and if the departure is a grave one, sternly rebuke or, if need be, punish the counsel, but it does not follow from this that in every instance where there is a transgression of the rules that govern in the argument of causes,

that there should be a reversal. As the cases to which we have referred decide, the appellate court can only interfere where substantial injury has been done the party, but the trial court may and should always keep counsel within the bounds of legitimate argument. If counsel undertake to state matters not in evidence, or to state facts which could not be put in evidence, the trial court should restrain them by a quick and sharp rebuke; but, the omission of the trial court to do its duty, while it may be a just reason for criticism, will not always entitle the accused to a judgment annulling the verdict.

There was no error in directing the jury, as the court did in the fifteenth instruction, that in passing upon the credibility of a witness they might consider "his impeachment in any case where the witness is found to be successfully impeached." It seems clear that, unless a witness is successfully impeached, he is not impeached at all. An attempt to impeach that results in a failure cannot be regarded as impairing the credit of a witness. The court did not, as counsel assume, tell the jury that they should not consider evidence offered to impeach a witness, but informed them that in deciding upon the credibility of a witness they might consider his impeachment, if he was found to be successfully impeached. This was simply affirming that if the witness was impeached they might consider that matter as affecting his credibility; for the language used conveys this meaning, and none other; since an attempt to impeach that is not successful goes for nothing, of course it is for the jury to determine whether the witness is impeached, as well as to determine all other matters affecting his credibility; but there is nothing in the instruction that conflicts with this principle. The matter of the credibility of witnesses was not taken from the jury.

It is contended, with much ability by appellant's counsel, that the judgment should be reversed for the reason that the jury were guilty of misconduct, but the question cannot be considered by us because it is not properly presented by the record. The record shows that the defendant filed affidavits with his motion for a new trial; that the state asked leave to file counter-affidavits, and to subpoena the jurors who tried the case; that the defendant unsuccessfully objected to granting the request of the state; that the court heard the evidence upon the motion at the appointed time; that a stenographer was appointed to take the testimony; that the investigation occupied several days; and that the court, after "being duly advised," overruled the appellant's motion. No affidavits are in the record except those filed with appellant's motion for a new trial, nor is the evidence given on the hearing of that motion in the record. This statement of the condition of the record shows that there is nothing more than the affidavits on the one side of the controversy before us, and we cannot presume that the statements made in them were not completely met and overthrown by the evidence adduced by the state. On the contrary, we are imperatively required to presume in favor of the ruling of the trial court. Judgment affirmed.

NOTE.

For a discussion of the question of misconduct of counsel in argument of a case to the jury, and when ground for new trial or reversal, see Anderson v. State, (Ind.) ante, 63, and note, 68.

In the case of Cleveland Paper Co. v. Banks, (Neb.) 16 N. W. Rep. 833, where the attorney of the successful party was permitted to comment on evidence that had been excluded, it was held to be error, for which a new trial must be granted.

It is improper for a prosecuting attorney to make a statement to the jury of a fact as of his own knowledge which has not been introduced in evidence under the sanction of an oath, relating to the material issues in the case; and if the accused is prejudiced thereby, the conviction will be set aside. People v. Dane, (Mich.) 26 N. W. Rep. 781. It was recently held in State v. McCool, (Kan.) 9 Pac. Rep. 618, that a statement by the county attorney in a criminal prosecution, that "the defendant has been guilty of one penitentiary offense, and would commit a greater offense to cover the other up," when it does not appear in what connection the statement was made, nor whether the county attorney had reference to the offense on trial, and which was not objected to, is not sufficient to compel the granting of a new trial.

It is not within the privilege of counsel, in argument to a jury, to use language calculated to humiliate and degrade the opposite party in the eyes of the jury and bystanders, particularly when he has not been impeached; and where, on the trial, a witness for plaintiff had been impeached by the testimony of the defendant, and plaintiff's counsel said, in addressing the jury, "that no man who lived in defendant's neighborhood could have anything but a bad character; that defendant polluted everything near him, or that he touched; that he was like the upas tree, shedding pestilence and corruption all around him,"-it was held that the defendant was entitled to a new trial. Coble v. Coble, 79 N. C. 589.

In Hatch v. State, 8 Tex. App. 416, on the second trial of the case, the public prosecutor, in addressing the jury, denounced the defendant as a "fellow" and a "land thief," and as guilty as h-1," and asserted that the new trial had been obtained "by a dodge and technicality," boasting of his ability to convict him before 12 honest men as many times as he could get a new trial. The defendant was convicted, and a new trial was granted, although the trial judge had admonished the jury to disregard this language of the prosecutor.

In Cartwright v. State, 16 Tex. App. 473, which was a trial for murder, at the close of the opening address of the prosecuting attorney, the audience applauded, and in his closing argument he alluded to this incident, and approved it. The court did not check or reprimand either the audience or the counsel, nor caution the jury. This was held to be error, and a new trial was granted.

It is said in Com. v. Scott, 123 Mass. 239, that on the trial of an indictment, if the prisoner does not testify, the prosecuting attorney will not be permitted to comment on the reasons given by the prisoner's counsel for such omission to testify, nor to state the reasons which he believes led to such omission.

And it has been held that when the prosecuting attorney does comment on the omis sion of the defendant to testify, and a conviction follows, the case will be reversed, even though the court checked the attorney in his remarks, and instructed the jury to pay no attention to what he had said. Long v. State, 56 Ind. 182.

But it is said in Petite v. People, (Colo.) 9 Pac. Rep. 622, that, although the counsel should not comment in argument upon the defendant's refraining from giving testimony in his own behalf, yet if he does, and then desists immediately upon objection, and the court warns the jury thereafter that defendant's failure to testify must not be considered against him, there is no prejudice worked such as to warrant a new trial. It was held in Huber v. State, 57 Ind. 341, not to be error for the prosecuting attorney, in his address to the jury, to comment on the appearance of the defendant while giving his evidence.

(107 Ind. 291)

SLANTER v. FAVORITE, Guardian, etc., and others. 1

Filed February 10, 1886.

1. GUARDIAN AND WARD INVESTMENT OF FUNDS OF WARD-DEGREE OF CARE REQUIRED OF GUARDIAN.

A guardian is not an insurer of the safety of investments made of his ward's funds, nor is he held to an extraordinary degree of care and diligence, but be is required to exercise ordinary care and diligence.

Ordinary care requires that a guardian should not accept a second mortgage. If, however, he exercises care and diligence in endeavoring to secure a first

1 Rehearing denied,