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The Midland Railway Company t. Wilcox a aL

H. Crawford, D. C. Chipman and M. A. Chipman, for appellant.

F. M. Tri88al, A. F. Shirts and G. Shirts, for appellees.

Elliott, J.—The trial court fixed the penalty of the appeal bond and approved the sureties offered by the appellant, and in our opinion we can not increase the penalty of the bond nor adjudge that the security is not adequate.

There is no showing that there has been any change in the situation of the parties or in the financial condition of the ^sureties on the appeal bond, and it is, therefore, not proper for this court to annul the decision of the trial court upon these questions.

The forum in which to try the question of the sufficiency of the penalty of an appeal bond, in a case appealed in term, is the court which is called upon to receive and approve the bond. There the question must be determined. R. S. 1881, section 638.

The question as to the solvency and ability of the sureties is one that the trial court must determine, and itsjudgment on this, as on other questions of fact, will be respected by the Supreme Court. It is in the trial court, and not on appeal, that such questions must be tried and determined.

Where a change in the condition of the parties or the sureties occurs, then the Supreme Court may properly interfere; otherwise the judgment of the trial court must stand.

Motion for additional bond overruled.

Filed June 29, 1887.

Coleman r. The State.

No. 13,898. _

Coleman V. The State. Hi

117

Criminal Law.Misconduct of Prosecuting Attorney.Opening Statement.— JJ9 Testimony of Defendant.Waiter of Error.—Where a prosecuting attorney |I83 in his opening statement to the jury uses the following language: "You in should watch the evidence closely. We do not know that the defendant 126 will go upon the stand. He has not been sworn; I noticed that. If 111 he should go upon the stand you should watch —," he thereby palpably 147 violates the spirit and purpose of the statute governing the testimony ~ of defendants in criminal cases; but where the court sustains an objec- Jji tion to the use of such language, and the same is withdrawn from th» nj~ jury, the error is not available if the defendant proceeds to the end of the 154 trial without further objection. jjit

Same.Piactice.Error Waived.—A defendant in a criminal case, who has igg^ knowledge of the misconduct or incompetency of a juror, or other mat- m ter, not affecting the jurisdiction of the court, which would vitiate the I167 trial, yet proceeds with the trial to its conclusion, without objection, will 111 not be heard afterwards to object that the proceeding was vitiated J|?g thereby. ^

Same.Prosecuting Attorney.Misconduct of.Practice.Motion to Set Aside Submission.—Where the prosecuting attorney, in his opening statement, is guilty of misconduct prejudicial to the substantial rights of the defendant, the latter, in order to avail himself of the error, must move to set aside the submission and discharge the jury.

Same.Assault with Intent to Commit Rape.Witness.Absence of Prosecutrix. Instruction.—In a prosecution for assault with intent to commit rape, where the testimony of the prosecutrix is accessible to both parties, it is not error for the court to refuse to instruct the jury that her failure to appear at the trial, and the failure of the State to account for her absence, were circumstances proper to be considered by them as tending to show that no crime had been'committed.

Same.Reasonable Doubt.Instruction.—In the trial of a criminal cause, where the jury has been instructed that before they can return a verdict of guilty they must find from the evidence, and be convinced of the defendant's guilt beyond a reasonable doubt, it is not error to refuse an offered instruction " that it is better that ten guilty persons escape than that one innocent suffer."

From the Jasper Circuit Court.

E. P. Hammond, M. F. Chiloole and W. B. Austin, for appellant.

L. T. Michener, Attorney General, R. W. Marshall, Prosecuting Attorney, and J. H. Gillett, for the State.

Coleman r. The State.

Mitchell, J.—Coleman was tried in the Jasper Circuit Court and sentenced to two years imprisonment for having feloniously assaulted one Ida Ream, with intent to commit a rape upon her person.

The error assigned brings before us the propriety of the ruling of the court in overruling the appellant's motion for a new trial.

As the learned counsel for the appellant suggest, the cast? is somewhat peculiar, in that the person upon whom tininjury is alleged to have been committed does not appear to have been examined as a witness. It is, however, beyond successful dispute that the verdict is well supported by other competent evidence. It may be inferred from the record that the State sought, without success, to obtain a continuance on account of the absence of the prosecutrix.

That the appellant without right invaded the room in whicli the prosecutrix was pursuing her work, as chambermaid, and that he made an indecent proposal to, ami perpetrated an unlawful assault upon her, is scarcely denied. There was testimony to the effect that he was seen violently struggling with the girl, thrusting one hand under her garments, the other arm about her neck, while with his hand he tried to cover her mouth, so as to prevent her from making outcry. Her resistance and outcries attracted the attention of others, one of whom witnessed the parties in the struggle, and whose presence, when observed, caused the appellant to desist. The girl left the room crying. That the appellant's purposes in intruding into the room were lecherous is not denied, and it is not at all surprising that the jury refused to adopt the theory that what he did was merely with a view to persuade the prosecutrix to yield to his lustful passion.

There was an unlawful assault upon the prosecutrix, who resisted from the beginning and made outcry. The jury drew the inference, as well they might from the evidence, that the assault was made with the felonious intent to have Coleman v. The State.

carnal knowledge of the girl by force and against her will, if it became necessary to the accomplishment of his purpose that force should be employed. We can not disturb the finding on the evidence.

It appears from a bill of exceptions, that in making the opening statement of the case the prosecutor used the following language in addressing the jury: "You should watch the evidence closely. We do not know that the defendant will go upon the stand. He has not been sworn; I noticed that. If he should go upon the stand you should watch—." At this point counsel for the defendant objected and excepted to the statement so made.

The court sustained the objection, whereupon the prosecutor said: "Very well; under the ruling of the court, I will suspend further remarks on that subject, and I withdraw the statement from the jury."

The bill of exceptions also recites, and the record shows, that the defendant subsequently testified as a witness in his own behalf.

For the appellant it is contended, with much force and plausibility, that in using the language above set out the prosecutor was guilty of such misconduct as constituted incurable error, which was not waived, notwithstanding the defendant proceeded to the end of the trial without further objection, and without exception to any adverse decision of the court involving the alleged misconduct of the prosecuting attorney.

Section 1798, R. S. 1881, provides, among other things, that a defendant in a criminal case shall be a competent witness, and that if he "do not testify, his failure to do so shall not be commented upon or referred to in the argument of the cause, nor commented upon, referred to, or in any manner considered by the jury trying the same;" and it is made the duty of the court " in such case in its charge, to instruct the jury as to their duly under the provisions of this section."

Much has been, and much more might be, said concerning Coleman r. The State.

the policy of statutes under which defendant* in criminal cases are admitted to testify as witnesses. Upon that .subject, however, it is hot necessary that we should enlarge. The objectionable remarks of the prosecuting attorney, although made in his opening statement to the jury, and, therefore, not directly controlled by the rulings in Long v. State, ")6 Ind. 182 (26 Am. R. 19), and Showalter v. State, 84 Ind. •">62, and although not within the literal prohibition of the statute, were, nevertheless, in palpable violation of its spirit and purpose. Surely, if the failure of the defendant to testify is not to be a subject of comment, or may not be referred to in the argument of the cause, nor commented upon, or referred to or considered by the jury, the prosecutor may not evade the statute by ingeniously injecting into his opening .statement remarks which do all the mischief which the prohibitory part of the statute was intended to prevent. The offect of the remarks must have been either to coerce the defendant to testify, as has been said, " with a halter about his neck," or to induce him to remain silent, with knowledge that the jury had been challenged in the outset to observe whether or not he would go upon the stand, under the goad of the prosecutor's statement.

But, conceding the impropriety of the prosecutor's conduct, since in this case the court promptly sustained the appellant's objection, and such reparation as could be was made on the spot, the court denying nothing which the appellant asked in that connection, the question still remains: Did the conduct of the prosecutor constitute an error so radical and incurable that it was not, and could not be, waived by the defendant by proceeding, without further objection or motion, to an adverse ending of the trial?

To affirm this proposition would put it in the power of a defendant to compel a second trial, at his election, whenever a prosecutor at any stage, cither by inadvertence or otherwise, violated the spirit of the statute under consideration. This, too, notwithstanding the trial court may have done its

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