Short v. The State.

3. It was in the discretion of the court, under the circumstances of this case, to compel, or otherwise, the prosecutor to elect on which count of the indictment he would prosecute the appellant. McGregor v. The State, 16 Ind. 9; Griffith v. The State, 36 Ind. 406; Bell v. The State, 42 Ind. 335; Mershon v. The State, 51 Ind. 14.

When the motion was made to compel an election, the "prosecutor stated to the court that both counts in the indictment related to the same transaction, differently stated, and that he meant to convict of one felony only." Further, the defendant was acquitted upon the count for larceny, and convicted only upon the count for burglary. The silence of the verdict as to the larceny was an acquittal of that charge.

4. We examine the grounds relied upon in the brief of counsel for a new trial. They were three:

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"1. The court permitted the jury to examine with a magnifying, or jeweler's, eye-glass, a ring offered in evidence, to ascertain if there had been an inscription on said ring and then erased by filing."

The indictment in this case was for burglary. The dwelling-house of a Mr. Guthrie, described in the indictment, was broken into in the night-time, during the absence of the family. Only circumstantial evidence could be obtained to identify the individual who committed the act. Among other articles discovered to be missing, on the return of Mr. Guthrie and family to his house, was a ring, the wedding-ring of Mr. and Mrs. Guthrie, with an inscription thereon of the names of the parties, date of marriage, etc. Soon after the burglary was committed, appellant, Short, pawned articles of jewelry, including a ring, to a pawnbroker in Lafayette. If it could be shown that that ring was the wedding-ring of Mr. Guthrie and wife, it would be a circumstance tending to show that the appellant, Short, was the person who entered Guthrie's

Short v. The State.

house, where said ring was in keeping, the night that the burglary was committed. If the inscription mentioned could be found upon the ring, or a remaining part of it, it would strongly tend to identify the ring, as the Guthrie wedding-ring; and, if the eye-glass in question augmented the natural power of the eye to discover the inscription, it did that which, in the light of science, it was made for; and, if it did not, we are unable to perceive that its use could have done any harm.

2. Misdirection by the court of the jury. Appellant's attorneys say: "The charge is long, and contains much of good law; and, after reading the charge, it is hard to find much fault with it. But we think the charge, in connection with the evidence, is as strong against the defendant as it could well be made."

The charge occupies over nine closely written pages of the record. The attorneys treat it all as one instruction. It is not numbered at all. It is not divided into paragraphs. No exception was taken to any specified part of it. See Bicknell Crim. Prac. 198, et seq.

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We have read the charge, and concur with the attorneys, that it contains much good law," and that "it is hard to find much fault with it." And, upon the statement of counsel, in regard to its merits, we feel relieved of apprehension, that, by omitting to enter upon a tedious search through its pages for the purpose of discovering objectionable points, not definitely located in it by the attorneys, injustice may result to the appellant. We think the allusion to the change of venue was harmless.

"3. The third cause for a new trial was, that the verdiet was contrary to law and evidence."

We can not reverse the judgment on this ground. The verdict is not contrary to law, and is supported by the evidence.

Short v. The State.

5. The fifth and last assignment of error is, that the court erred in overruling the motion in arrest.

The statutory grounds for such a motion are:

"First That the grand jury who found the indictment had no legal authority to inquire into the offence charged, by reason of it not being within the jurisdiction of the

court.

"Second. That the facts stated do not constitute a public offence."

The court may also, on its view of any of these defects, arrest the judgment without motion. Sections 144 and 145 of the code of criminal pleading and practice, 2 R. S. 1876, p. 409.

No ground existed for the arrest of the judgment.

We have examined all the questions presented by the assignment of errors, and, were this a civil cause, we should not feel under obligation to proceed further. But so defective is the criminal code of practice, that the court must go beyond it, to secure justice to the parties in criminal cases. See Bicknell Crim. Prac. 235.

We proceed to consider other objections made.

The court received the verdict of the jury, without the names of the jurors being first called. The bill of exceptions states, that the jury "returned into court, and the court propounded the question, Have you agreed upon a verdict?' and, receiving an affirmative reply, the verdict was then received and read by the court, without first calling over the jury, to ascertain if they were all present, and that the names of the jury were not called over either before or after the verdict was received, but were discharged by the court as soon as the verdict was read. The defendant, however, had an opportunity to poll the jury, if he had desired to do so; and the fact being that the court knew by observation, that the jury were all present and in their places when the verdict was received, and the de

Short v. The State.

fendant was personally present, and also by counsel, when the verdict was received."

It is enacted, by section 115 of the code of criminal pleading and practice, that, "When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all appear, their verdict must be rendered in open court. If all do not appear, the rest must be discharged without giving a verdict, and the cause must be tried again at the same or next term.”

Section 160 of the same code is as follows: "On an appeal the court must give judgment, without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.

According to the bill of exceptions taken by the defendant (appellant), he did not claim, and does not now, that the jury by whom he was tried were not all in the box, and they alone, when the verdict was returned and received by the court. Such being the fact, no harm could have happened to the appellant by the failure to call the names of the jurors, and this point will be controlled by section 160, supra.

It is urged, that the testimony of a witness for the State, named Rosenzweig, should have been struck out, because he had been a witness before the grand jury, and his name was not upon the indictment. The only consequence of this omission was, that the State could not have obtained a continuance on account of his absence from the trial. Bicknell Crim. Prac. 54; 2 R. S. 1876, p. 375, sec. 18. Other points are made, but are not pressed in argument, and we think the rulings upon them were correct

The judgment is affirmed, with costs.

Petition for a rehearing overruled.

Kidwell v. The State.

KIDWELL V. THE STATE.

CRIMINAL LAW.-Incest.-Evidence.-Impeaching Witness.-The fact as to whether or not the prosecuting witness had become pregnant by means of sexual intercourse had by her with others than the defendant, and her declarations in relation thereto, are immaterial and irrelevant, on the trial of a defendant indicted for incest, either for the purpose of impeaching her testimony or for any other purpose.

SAME.-Reputation for Chastity and Virtue.-Evidence attacking her reputation for chastity and virtue is inadmissible.

From the Marion Criminal Circuit Court.

H. N. Spaan, for appellant.

T. W. Woollen, Attorney General, for the State.

BIDDLE, J.—Indictment against the appellant for incest committed with his daughter, Alice Kidwell. Plea, not guilty.

Trial by jury; verdict, guilty; punishment, eight years in the state-prison.

Motion for a new trial overruled; exceptions; judg ment; appeal.

The following questions are presented by the record, and discussed by the appellant:

1. As the basis of impeachment, the appellant asked the prosecuting witness the following question :

"Did you not go with your father, about the 15th day of May, 1876, to the office of Dr. S. H. Moore, in this city, No. 155 North Tennessee street, for the purpose of having yourself examined by him? and did he not examine you and tell you that you were pregnant? and did you not tell him that a young man in the country was the father of your child?"

To this question the witness answered, "I did not.”

At the proper time the appellant called Dr. S. H. Moore as a witness, and, after fixing the time and place as above, propounded to him the following interrogatory as an impeaching question: