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The State, ex rtl. Robinson, v. Carr, Auditor of State.

purely public character, introduced solely for the public good. * * * A public corporation is one that is created for political purposes, with political powers, to be exercised for purposes connected with the public good in the administration of civil government; an instrument of the government subject to the control of the Legislature, and its members officers of the government, for the administration or discharge of public duties, as in the cases of cities, towns," etc. Yarmouth v. North Yarmouth, 34 Maine, 411; North Yarmouth v. Shillings, 45 Maine, 133.

There are three classes of corporations, to wit, public municipal corporations, the object of which is to promote public interest; corporations technically private but of a quasi public character, having in view some public enterprise in which the public interests are involved, and corporations strictly private. 1 Dill. Munic. Corp., sees. 52, 53. Dartmouth College v. Woodward, 4 Wheat. 518; Miner's Ditch Co. v. Zellerbach, 37 Cal. 543; Foster v. Fowler, 60 Pa. St. 27.

The act under which the State University was established, made provision for a board of trustees, and enacted that "they and their successors shall be a body politic, with the style of 'The Trustees of Indiana University,' in that name to sue and be sued," etc. This corporate body is invested with the power to possess, take and hold, in their corporate name, all the real and personal property of the university for its benefit, and is authorized to expend the income thereof for the benefit of the institution. It is authorized to make all by-laws necessary to carry into effect the general purposes for which the institution was organized. The corporation thus organized has none of the essential characteristics of a public corporation. It is not a municipal corporation. Its members are not officers of the government, or subject to the control of the Legislature in the management of its affairs, and the university fund, derived in the manner pointed out in section 4595, does not belong to the State. Vol. 111.—22

The Slate, ex rel. Robinson, ». Carr, Auditor of State.

That the university was established under the direct authority of the State, through a special act of the Legislature, or that the charter contains provisions of a purely public character, nor yet that the institution was wisely established, and is and should be perpetually maintained at the public expense, for the public good, does not make it a public corporation, or constitute its endowment fund a public fund.

While it is made the duty of the auditor of state to loan out the fund when paid into the treasury of the state, and although the disposition of the lands and the management of the fund are placed in the hands of public officers of the State, the university fund, nevertheless, remains, and must continue a special fund for the exclusive benefit of the university. The legal status of the State University being that of a technically private, or, at most, quasi public corporation, the university fund, of which it is the sole beneficiary, is, therefore, not a public fund, within the meaning of the law.

It can not be supposed that the act of 1879, repealing "all acts on the subject of interest, including such as relate to interest on public funds," etc., was intended to repeal any part of the several acts establishing the State University, or to affect the interest on its special endowment fund. There is no pretence, of course, that the law regulating the rate of interest at which the university fund is to be loaned, is repealed in express terms. If repealed at all it is by implication. No maxim receives more universal recognition, or is more rigidly adhered to by the courts, in the construction of statutes, than that the law does not favor repeals by implication. To statutes enacted, like that under consideration, for a special purpose, this rule has peculiar application. The legislature having by a special statute erected a corporation of the character described, and having made it the beneficiary of a special fund, with the loaning and management of which it has charged the auditor of state, whose duties in that reThe State, ex rei. Robinson, v. Carr, Auditor of State.

spect are specifically pointed out, that statute, with the amendments thereto, until it is expressly repealed or modified, must be regarded as furnishing the guide for the auditor's conduct.

It is worthy of consideration that the statute which is supposed to effect a repeal of the section regulating the rate of interest at which the auditor shall loan the university fund, contains, after the phrase " public funds," a specific enumeration of the funds upon which the rate of interest is fixed at eight per cent. These are "purchase-money of canal, college, school or saline lands, and upon the permanent school fund." The phrase " public funds" may be regarded as embracing, in a general sense, the particular funds subsequently enumerated.

This is according to "a well known rule for the construction of statutes, which, though ancient, is always adhered to," by which the general words in one clause of a statute may be limited and restrained by the particular words in the same or a subsequent clause. Sedgwick Statutory Construction, p. 360.

The application of this rule, as well as the other considerations mentioned, leads to the conclusion that the statute regulating the rate of interest to be paid upon the loan of the university fund, was in no wise affected by the later act, relating to the subject of interest upon public funds.

This conclusion results in the reversal of the ruling and judgment of the Marion Circuit Court.

Judgment reversed, with costs.

Filed June 17, 1887.

Roberts r. The State.

rmao No. 13,375.

181 18

Roberts V. The State.

Criminal "Lit^t.—Instruction to Jury.Invasion of Province of Jury.—An instruction to the jury in a criminal cause, to the effect that, under the evidence adduced, if they find the defendant guilty, it is an aggravated offence, and that they have the right to fix a proper penalty, is an invasion of the province of the jury, and erroneous.

Same.Presence of Prisoner Throughout Trial.—In a criminal prosecution, where the offence charged is punishable by death, or by confinement in the State prison or county jail, the defendant must be personally present during the trial, unless he in some way waives the right, and if any substantial part of the trial is had in his absence without his consent, notwithstanding the presence of his counsel, it is such an error as requires a reversal of the judgment on appeal.

Same.Instructing Jury Part of Trial.Witlidrawal of Erroneous [instruction.
Instructing the jury is a part of the trial, and if the jury, after retire-
ment, are called back into the court-room, and an erroneous instruction
withdrawn or corrected by a statement of the court, in the absence of the
defendant, who is charged with a crime of the class above mentioned,
•it is error.

From the Vigo Circuit Court.
■J. 11. Courtney, for appellant.

L. T. Michener, Attorney General, D. W. Henry, Prosecuting Attorney, D. N. Taylor, W. B. Hord and J. H. Gillett, for the State.

Zollars, C. J.—Appellant was convicted upon a charge of burglary, and sentenced to the State prison for a period of seven years.

The seventh instruction given by the court was as follows: "■"Under the evidence in this cause, if you find the defendant guilty, it is an aggravated burglary, and you have a right to fix a proper penalty."

That the instruction was erroneous, because it invaded the province of the jury, and was, in effect, an instruction to them to inflict a severe penalty, seems clear. For analogous cases see Cline v. iLmdaey, 110 Ind. 337, and cases there cited.

Roberts v. The State.

After the jury retired, and had had the case under consideration for some time, the trial court had them recalled to the court-room, and having stated to them that he had given the above instruction, repeating it, instructed them further, as follows: "I want to say to you, that I"guess this is not correct, and you will disregard it. It is a question for the jury to determine the nature of the crime, and the punishment they will inflict therefor."

The foregoing was clearly an instruction. To withdraw a charge given, and instruct the jury that it is not the law and should be disregarded by them, is as much an instruction as the giving of the charge in the first place. Here, not only was the instruction withdrawn as not being the law, but the jury were further instructed that it was for them to determine the nature of the crime and the punishment to be inflicted. See Stephenson v. State, 110 Ind. 358.

When the jury retired in the first instance, appellant was returned to the county jail. He had no notice that the jury were to be recalled, nor that they were recalled for further instructions, and was not present when they were recalled and the further instruction given.

Was the giving of the instruction in his absence such error as requires the reversal of the judgment?

The statute provides, section 1786, R. S. 1881, that no> person prosecuted for any offence punishable by death, or by confinement in the State prison or county jail, shall be tried unless personally present during the trial. In such cases, the presence of the defendant's counsel does not meet the requirement of the statute. He must be personally present unless he in some way waives that right. Such is the positive requirement of the statute. No court can dispense with it. If the trial, or any substantial part of it, is had in the absence of the accused without his consent, the statute is violated and his rights invaded.

Such an invasion can not be regarded by the courts as a harmless error. Instructing the jury is clearly a part of the

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