to elect upon which lant should be tried. ceptions reserved.

Merrick v. The State.

count in the indictment the appelThe motion was overruled, and ex

There is no error in this ruling. Several felonies of the same class may be joined in different counts in the same indictment, and it is not error to refuse to require the State to elect upon which one the defendant shall be tried. In this case both counts are for killing the same person, differing only in the manner in which the killing was done. There was no necessity to require the State to elect upon which count the appellant should be tried. MeGregor v. The State, 16 Ind. 9; Griffith v. The State, 36 Ind. 406; Mershon v. The State, 51 Ind. 14.

3. A motion was made for a change of venue on account of the excitement and prejudice against the appellant in the county. The motion was overruled. The appellant complains of this ruling.

Affidavits were received in favor of the motion and against it. The court considered and decided the question of fact upon this evidence. It was discretionary with the court to deny or grant the motion. It is impossible for this court to say fairly, from the evidence, that a sound judicial discretion was exceeded in the ruling. We can not therefore hold it as error. Griffith v. The State, 12 Ind. 548; Fahnestock v. The State, 23 Ind. 231; Anderson v. The State, 28 Ind. 22; Morgan v. The State, 31 Ind. 193; Clem v. The State, 33 Ind. 418; Bissot v. The State, 53

Ind. 408.

4. The court overruled a motion for a continuance of the case on account of the absence of witnesses, founded on the affidavit of the appellant. He complains of this ruling.

The defect in the affidavit is, that it states that the witnesses reside in the city of Indianapolis, and fails to show proper diligence in having them subpoenaed. The appellant

Merrick v. The State.

was indicted on the 12th day of October, 1878, and did not subpoena his witnesses until the 27th day of November, 1878. The affidavit is also defective in not showing when the attendance of the witnesses can be procured, or whether ever. It does not fulfil the requisites of the statute to obtain a continuance of a cause. 2 R. S. 1876, p. 164, sec. 322. Nor does it come within the decisions of this court. Hall v. The State, 8 Ind. 439; Deming v. Patterson, 10 Ind. 251; Mugg v. Graves, 22 Ind. 236; McKinlay v. Shank, 24 Ind. 258; Ward v. Colyhan, 30 Ind. 395; Miller v. The State, 42 Ind. 544; Wolcott v. Mack, 53 Ind. 269; Beavers v. The State, 58 Ind. 530; The Ohio and Miss. R. W. Co. v. Dickerson, 59 Ind. 317.

5. On motion of the State, the court allowed a special venire to issue for thirty persons to serve as jurors.

To this the appellant objected and excepted.

It does not appear that any of these jurors, if they were summoned, were empanelled in the case we are considering, nor that objection was made and reserved by the appellant to any juror. The court has the power to empanel a special jury whenever the business of the court requires it, and, if done over the objection of the party opposing it, it will not be error. 2 R. S. 1876, p. 13, sec. 3, act of March 7th, 1873; Ecarts v. The State, 48 Ind. 422; Winsett v. The State, 57 Ind. 26.

6. After the State had closed the evidence in chief, and while the appellant was introducing evidence on the part of the defence, the court, over the objections and exceptious of the appellant, allowed the State to call a witness as to original matter on behalf of the State in chief, to which original matter the witness testified.

This ruling falls within the sound discretion of the court. It does not appear but that the appellant had a full and fair opportunity to meet and controvert the testimony of the witness who was thus called; and it does not appear

Merrick v. The State.

that the court, in the exercise of its judgment, exceeded a a fair and safe discretion. Such a discretion would have to be clearly exceeded, before an appellate court could interfere with the ruling, and reverse a judgment therefor. Ferguson v. Hirsch, 54 Ind. 337.

7. The appellant complains of certain instructions given by the court to the jury.

We have read these instructions; they are not wrong as legal propositions; and, as the evidence in the case is not in the record, we must presume that they were properly given. The court also read portions of the statute as part of the instructions to the jury. This, also, without the evidence before us, must be presumed to have been correct. This question has been repeatedly decided. Murray v. Fry, 6 Ind. 371; List v. Kortepeter, 26 Ind. 27; Stull v. Howard, 26 Ind. 456; The State v. Frazer, 28 Ind. 196; The Columbus, Chicago and Indiana Central R. W. Co. v. Powell, 40 Ind. 37; Miller v. Voss, 40 Ind. 307; Keating v. The State, 44 Ind. 449; The Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; Rogers v. Lamb, 3 Blackf. 155; Ruffing v. Tilton, 12 Ind. 259; Newton v. Newton, 12 Ind. 527; The Jeffersonville, etc., R. R. Co. v. Cox, 37 Ind. 325; Blizzard v. Bross, 56 Ind. 74; Boyd v. Wade, 58 Ind. 138; Schoonover v. Irwin, 58 Ind. 287; Lewellen v. Garrett, 58 Ind. 442.

8. The appellant also complains of the refusal to give certain instructions to the jury.

The evidence not being in the record, this ruling must be presumed to be right. The refusal to give instructions to the jury, when the evidence is not in the record, must be presumed to be correct. Abrams v. Smith, 8 Blackf. 95; The State v. Beackmo, 8 Blackf. 246; Rogers v. Lamb, 3 Blackf. 155; Ruffing v. Tilton, 12 Ind. 259; Newton v. Newton, 12 Ind. 527; The Jeffersonville, etc., R. R. Co. v. Cox, 37 Ind. 325; Blizzard v.Bross, 56 Ind. 74; Freeze v. DePuy, 57 Ind. 188.

Merrick v. The State.

Before the case was finally submitted to the jury to consider of their verdict, the counsel for appellant moved to strike out of the record certain evidence touching the character of the body of the deceased and other bodies, which tended to show that they were the bodies of human beings, which evidence had been admitted over the appellant's objection. The ground of the motion was, that the indictment did not describe the deceased as a human being.

We have already held that it was not necessary to aver in the indictment, that the person killed was a human being; it follows, from the reasons there given, that it would not be error to admit evidence that the body of the person killed was that of a human being. The court did not err in admitting the testimony nor in refusing to strike it out.

10. The counsel objected to evidence offered by the State, tending to prove what kind of weapons the appellant carried on the evening before the alleged killing occurred.

We can see no force in this objection. The second count of the indictment charges the killing to have been done by inflicting mortal wounds. Evidence, therefore, that the appellant carried weapons about that time, with which such wounds might have been inflicted, is in the direct line of the averments in the indictment.

11. After the verdict was returned, the counsel moved to discharge the appellant from the crime charged against him in the indictment, for the reason that the verdict is so imperfect that no judgment can be rendered thereon.

The verdict is in the following words:

"We, the jury, find the defendant guilty of murder in the first degree, as charged in the indictment, and that he suffer death therefor. J. W. MCVEY, Foreman."

The counsel's argument is, that there are two counts in the indictment, and the verdict does not state upon which the appellant was found guilty. He cites the case of Wein

Merrick v. The State.

zorpflin v. The State, 7 Blackf. 186; but the authority does not support his argument. That case decides, that, when separate felonies are charged in different counts of the same indictment, a verdict of guilty, expressly confined to one count, is equivalent to a verdict of not guilty on the other counts not mentioned. But a general verdict on one indictment, charging the same felony in two separate counts, is good. Either count of the indictment in the present case will sustain the verdict, which is substantially in the proper form. The court correctly overruled the motion. Miller v. The State, 51 Ind. 405; Taylor v. The State, 49 Ind. 555; Lovell v. The State, 45 Ind. 550; Enwright v. The State, £8 Ind. 567; Commonwealth v. Birdsall, 69 Pa. State, 482; Wharton Criminal Law, secs. 3,176 to 3,181. 12. The appellant moved the court for a venire de novo. It was denied.

A venire de novo is awarded only in a case where no judgment can be rendered on the verdict, in consequence of its imperfection or uncertainty. There is no imperfection or uncertainty in the verdict before us. The court, therefore, properly denied the venire de novo. Boxley v. Collins, 4 Blackf. 320; Bosseker v. Cramer, 18 Ind. 44; The Cincinnati and Chicago R. R. Co. v. Washburn, 25 Ind. 259; Smith v. Jeffries, 25 Ind. 376; Jenkins v. Parkhill, 25 Ind. 473; Marcus v. The State, 26 Ind. 101; Trout v. West, 29 Ind. 51; Pea v. Pea, 35 Ind. 387; Gulick v. Connely, 42 Ind. 134; Housworth v. Bloom huff, 54 Ind. 487; Peters v. Lane, 55 Ind. 391; Whitworth v. Ballard, 56 Ind. 279; Leeds v. Boyer, 59 Ind. 289.

13. The appellant moved in arrest of judgment. His motion was overruled. Of this he complains.

A motion in arrest of judgment, in a criminal case, will lie on but two grounds: 1. That the court had no jurisdiction of the case; 2. That the facts stated do not constitute a public offence. 2 R. S. 1876, p. 409, sec. 144;