The Domestic Sewing Machine Co. v. Arthurhultz. the vendor until it has been paid for, the title to such property will not pass to the vendee thereof until such payment has been made. This doctrine is settled by the following authorities, cited by the appellant's counsel, and claimed by them to be decisive of the case at bar, to wit: Thomas v. Winters, 12 Ind. 322; Shireman v. Jackson, 14 Ind. 459; Plummer v. Shirley, 16 Ind. 380; Dunbar v. Rawles, 28 Ind. 225; and Sims v. Wilson, 47 Ind. 226. The same doctrine is fully considered and adhered to in the more recent case of Bradshaw v. Warner, 54 Ind. 58. It may be conceded, that the appellant's evidence in this case showed that the appellee was not the owner of the sewing machine in controversy; but it would not follow, by any means, from the fact thus shown, either that the appellant was the owner, or that it was entitled to the possession of said machine, either at the commencement of this action or at any time afterward. It seems to us that the appellant's evidence clearly showed that the title to the sewing machine, at least at the time of the trial, was in Child Brothers; and this title, so far as the evidence shows, was not inconsistent with the appellee's possession of the machine. In an action to recover the possession of personal property, it is a good defence to show that the title to the property is in a stranger to the record, where the complaint alleges title in the plaintiff. Landers v. George, 40 Ind. 160; and Thompson v. Sweetser, 43 Ind. 312. In the case now before us, it was alleged in the complaint, that the appellant was the owner and entitled to the possession of the sewing machine in controversy. It was necessary that the appellant should sustain this allegation by evidence. There was no evidence introduced by the appellant, on the trial, in support of its ownership or right to the possession of the sewing machine. It is true, that the appellant gave in evidence a note, or, as it is called, an article of agreement, signed by the appellee, but that instrument did not show, The Domestic Sewing Machine Co. v. Arthurhultz. nor tend to show, that the appellant was the owner, or entitled to the possession, of the sewing machine. On the contrary, as it seems to us, this note showed upon its face that the appellant was not the owner of the sewing machine, but that the title thereto was in third persons, who were strangers to the record of this action; for the note in question contained this clause: "The sewing machine described herein, for which this note is given, shall remain the property of Child Brothers until this note is fully paid." This was the appellee's contract with Child Brothers. The appellee stipulated, and by accepting the note Child Brothers agreed with him, that the sewing machine should remain their property, not until they might endorse the note to some stranger, but "until this note is fully paid." When this action was commenced, it appeared that the note in suit was not fully paid, and therefore it followed, that, by the terms of the note, the sewing machine remained the property of Child Brothers. If it were conceded that Child Brothers might, under the agreement contained in the note, sell and assign to a third person the property reserved to them personally in the sewing machine, which we doubt but do not decide, it seems very clear to us that they did not, by their endorsement in blank of said note, sell and assign their property in said machine to the appellant, and there is no other evidence of any such sale or assignment in the record. We think that the evidence failed to show that the appellant was the owner and entitled to the possession of the sewing machine in controversy; and therefore we hold, that the court did not err in overruling the appellant's motion for a new trial. The judgment is affirmed, at the appellant's costs. Merrick v. "The State. MERRICK V. THE STATE. CRIMINAL LAW.-Indictment.-Murder.-Description of Deceased.—It is manner, SAME.-Affidavit for Continuance.-An affidavit for a continuance on account of the absence of a witness should show that due diligence has been used to procure the attendance of the witness, and the time when his attendance can probably be had. SAME.-Empanelling Special Jury on Special Venire.-The court has power to order a special venire for a special jury to try a defendant, if the business of the court so require. SAME.-Order of Introducing Evidence.-Judicial Discretion.-It is within the discretion of the court to allow the State, during the introduction of the defendant's evidence in chief, to call a witness as to original matter. SAME.-Supreme Court.-Record.-Instructions.—Presumption.—Where the evidence is not in the record, and the instructions given to the jury are not abstractly wrong, the Supreme Court, on appeal, will presume that the instructions were properly given. SAME.-Refusal to Give Instruction.—In such state of the record, the refusal SAME.-Murder.—Evidence.-Body of Deceased. It is not error, on the 63 327 130 469 63 327 136 665 63 327 148 249 63 327 154 Merrick v. The State. SAME. Verdict.-A general verdict of guilty "as charged in the indictment," returned on an indictment charging the same crime in separate counts, is valid. SAME. Venire De Novo.-A venire de novo can be awarded only where no judgment can be rendered upon the verdict, in consequence of its imperfection or uncertainty. SAME.-Arrest of Judgment.-The judgment in a criminal case can be arrested only because the court has no jurisdiction of the case, or because the indictment does not state facts constituting a public offence. SAME.-Evidence Before Grand Jury.—The prosecuting attorney can not be compelled to furnish the defendant with a copy of the evidence given against him before the grand jury in finding the indictment. SAME.-Short-Hand Reporter.—Rights of, as to Payment.-Defending as Poor Person.-Judicial Discretion.-Under section 4 of the act of March 10th, 1875, 1 R. S. 1876, p. 770, a short-hand reporter may require payment, or security therefor, of a party demanding a long-hand copy of his notes of the evidence, before proceeding to prepare it; though the court may, in its discretion, admit the defendant to defend as a poor person, and direct that such copy be furnished to him, to enable him to prepare a bill of exceptions. SAME.-Bill of Exceptions.-It is not error to refuse to admit a copy of the short-hand notes of the evidence into a bill of exceptions.. SAME.-Supreme Court.-The Supreme Court has no authority to direct such short-hand notes to be copied and to order them to be paid for out of the state or county treasury. SAME.-Error can not be predicated upon the action of the lower court in tying the short-hand notes of the evidence to the record of the cause. SAME.-Time for filing Bill of Exceptions.—Judicial Discretion.-The length of time to be allowed for the preparation of a bill of exceptions is to be fixed by the court trying the cause, in the exercise of a sound discretion. From the Marion Criminal Circuit Court. R. D. Logan, W. P. Adkinson, A. A. Falkenburg and B. F Davis, for appellant. T. W. Woollen, Attorney General, J. B. Elam, Prosecuting Attorney, and J. L. Mitchell, for the State. BIDDLE, J.-The appellant was indicted for the murder. of Julia Merrick, tried, convicted and sentenced to death. The indictment contams two counts, each count charging murder in the first degree. The first count charges the killing to have been done by administering poison; the second, by inflicting certain mortal wounds. Merrick v. The State. On motion for a new trial, seventy-two causes were assigned therefor; but, as the evidence, to which the instructions given, and refused to be given, had reference, and upon which the conviction was had, is not before us, but few questions are raised thereby. Twenty-four assignments of error are alleged in this court, many of which are merely causes for a new trial, and, as assignments of error, present no questions here. Such questions as are properly presented by the record, and discussed on behalf of the appellant, will be noticed in the order of the proceedings. 1. The appellant moved to quash each count of the indictment. His motion was overruled, and he excepted. The principal ground urged for quashing the indictment was, that it is not averred that Julia Merrick was "a hu-. man being." We know of no precedent or form that requires this averment. It was not necessary at common law, nor has it been made so by statute. In the old form, the person killed was described by name, to which was generally added the words, " a reasonable creature, in being, and under the King's peace;" but indictments were not insufficient for want of these additional words. The name imports a human being; that is sufficient. It is claimed that the second count is bad, because it does not aver that the mortal wound, made by cutting the womb, "was not done in a surgical operation, and that the same was not a necessary operation in protecting and trying to save the life of Julia Merrick." If it was directly averred that the killing was done in performing a surgical operation, if done with a purpose to kill and with premeditated malice, as in this indictment is averred, it would doubtless be sufficient. These objections have no validity. The indictment is sufficient. 4 Bl. Com. 197; 1 Wharton Precedents, 114, 185. 2. The appellant moved the court to require the State |