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utmost to rectify the mistake, and may have made no ruling ■or decision in that connection adverse to the defendant, or to which he took any exception. It seems difficult to discover any principle which would allow a defendant, in case of misconduct ou the part of any one which would necessitate a new trial, to proceed without objection to the end of a protracted trial, availing himself of every opportunity to secure a favorable result, after becoming fully aware of such misconduct, and yet hold in reserve an absolute right to have the verdict set aside in case it did not suit him.

The authorities uniformly declare the rule to be that, except as to matters involving the jurisdiction of the court over the subject-matter, if a party have knowledge of a matter which will frustrate the trial in the end, he must avail himself of the earliest opportunity to arrest the proceeding or he will be deemed to have waived his right to object when the end is reached. He will not be permitted to go on without objection, taking his chances of ultimate success, and afterwards go back and impeach the trial in case he is disappointed at the result.

Misconduct on the part of the prosecutor is not different in principle or effect from misconduct on the part of a juror or other person connected with the trial. It is a settled rule, that a person having knowledge of the misconduct or incompetency of a juror, or of any other matter, not affecting the jurisdiction of the court, which would vitiate the trial, who nevertheless proceeds to a conclusion without objection, will not afterwards be heard to object that the trial was vitiated thereby.

This subject was exhaustively considered and the authorities reviewed in the recent case of Henning v. State, 106 Ind. 386 (55 Am. R. 756).

In the case under consideration the objectionable remarks of the prosecutor were made immediately after the jury were -empanelled, at the very outset of the trial.

If the court had, of its own motion, set aside the submisColeman r. The State.

sion and discharged the jury without the appellant's consent, jeopardy having attached, it might well have been claimed that he was entitled to an acquittal.

To have made available error, the trial court should have been afforded an opportunity to eliminate the error, by ruling upon a motion to arrest the further progress of the case. True, there was an objection and an exception to the statement of the prosecutor, but the court sustained the objection, and under its ruling the objectionable statement was withdrawn. There was, therefore, no ruling or decision of the court to which an exception was or could have been saved. Section 1845, R. S. 1881.

Our conclusion, therefore, is that, in the absence of a motion by the defendant to set aside the submission and discharge the jury, there was no available error in refusing the motion for a new trial on account of the alleged misconduct of the prosecuting attorney in making his opening statement.

The refusal of the court to instruct the jury to the effect that the failure of the prosecutrix to appear at the trial, and the failure of the State to account for her absence, were circumstances proper to be considered by the jury, as tending to show that no crime had been committed, is complained of as reversible error.

Section 1823, R. S. 1881, makes it the duty of the court in charging the jury to " state to them all matters of law which are necessary for their information in giving their verdict."

The instruction refused can hardly be said to embrace any matter or proposition of law. It tended rather to invite the jury to infer as a matter of fact that the absence of the witness, unaccounted for by the State, although from aught that appears she was equally accessible to the defendant, was to be or might be considered as a circumstance tending to raise a presumption of innocence. It is always of doubtful propriety for the court to instruct the jury in such a way as to Coleman r. The State.

cause them to conclude that from the absence of certain evidence or facts they may infer certain other facts. Union Mut. Life Ins. Co. v. Buchanan, 100 Ind. 63.

This pertains rather to the argument of the cause than to a statement of the law of the case. Besides, as was said in Haymond v. Saucer, 84 Ind. 3 (13), " The failure to produce a witness, who might as well be called by one party as the other, is no reason for indulging a presumption against either party."

Where one party alone is so situated that he can offer evidence of all the facts and circumstances surrounding a transaction, the failure to produce such evidence, where it is not accessible to the other party, or the suppression or destruction of evidence which is accessible to one party and not to the other, may sometimes be considered as a circumstance against the party to whom alone the evidence is accessible. Commonwealth v. Webster, 5 Cush. 295.

But this rule, which is to be cautiously applied in any case, has no application where the evidence is equally within the reach of both parties. State v. Rosier, 55 Iowa, 517. There was no error in refusing the instruction.

The court having adequately instructed the jury that before they could return a verdict of guilty they must find from the evidence, and be convinced of the defendant's guilt beyond a reasonable doubt, it was not error to refuse the defendant's request to instruct that it was better that "ten guilty persons escape than that one innocent suffer."

So far as the other instructions refused stated the law correctly, they were substantially embraced in those given by the court.

There was no available error. The judgment is affirmed, with costs.

Filed Sept 27, 1887.

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««■» No. 7584.

}}• j« Knopf V. Morel.

130 147 Pleading.Complaint.Surplusage.—Statements of facts in a complaint,

ill 570 which are in themselves material and relevant to the cause of action,

133 can not be regarded as surplusage, although they overthrow the pleading.

IM 562 Same.Repugnant Allegations. —Where a complaint contains material and

\r'i relevant facts, which constitute a defence to the action, it is bad on

152 3641


Judgment.Suretyship.Contribution.Collateral Attack.—Where a valid judgment has been rendered against several defendants, in which the question of suretyship between them has been determined, a suit for contribution afterwards brought by one of such defendants is a collateral attack on the judgment, and will fail.

Same.Evidence.Reversible Error.—Parol evidence attacking a judgment which the record thereof on its face shows to be void, though incompetent, does not prejudice nor impair the rights of the party claiming under such judgment, and the admission of such evidence is not reversible error.

Principal And Surety.Judgment Defendants Primarily Liable.Establisliment of Suretyship.—Parties against whom a judgment is taken are deemed primarily liable, unless the judgment determines the question of suretyship, though after judgment one who occupies the relation of surety may have the fact judicially established, and an order for an execution in his favor.

Same.Co-Sureties.Jurisdiction.—Jurisdiction to determine the rights of the plaintiff as against the defendants is not jurisdiction to determine the rights of the defendants on the question of suretyship, and does not of itself authorize an adjudication on that subject.

Same.—To secure a judicial determination of the question of suretyship, proper steps must be taken to invest the court with jurisdiction, and jurisdiction is not conferred by a complaint upon an instrument which does not on its face fully disclose the relation of the parties.

Same.Question of Suretyship an Independent One.General Rule.Exception. —The question of suretyship, so far as it affects the rights of the debtors between themselves, is an independent one, and is not as a general rule determinable upon the complaint, although there are cases where the complaint so fully discloses the facts as to give jurisdiction to adjudicate upon questions of suretyship without process issuing upon the cross-complaint, and even without a cross-complaint. Oithens v. Kimmer, 68 Ind. 362, limited.

■same.Endorser.Establishment of Suretyship.—An endorser can not have a judgment conclusively establishing suretyship upon the complaint of the plaintiff on a promissory note upon which, from the position of his

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name upon the instrument, lie prima facie appears as surety, without bringing the makers into court upon the question of suretyship.

Same.Judgment Determining Suretyship Without Proper Pleadings Void.— A judgment rendered in an action before a justice of the peace, where the only complaint is a promissory note bearing the names of two makers on the face thereof and the name of another on the back, which assumes to determine the question of suretyship by adjudging the party whose name is on the back of the note to be surety, there being no pleadings filed raising such question, is invalid so far as it assumes to settle the question of suretyship, and is no bar to a subsequent action for contribution against the party so adjudged to be surety.

Same.Endorser.Liability of.Presumption.Evidence.—An endorser is not presumed to be a co-surety of one who signs as maker of a note, but parol evidence is admissible to prove that he did sign as co-surety.

Same.—Contribution.Endorser.Co-Suretks.Pleading. Complaint. — In an action for contribution, by one claiming to be surety on a promissory note upon which judgment has been rendered against an endorser who it is alleged was the co-surety of the plaintiff, it is sufficient to allege in the complaint that they were co-sureties, and that neither received any part of the consideration, without an averment that thtre was any contract between the parties establishing the relation claimed.

Same.Co-Sureties.Contract Between Endorser and Malier.Evidence.Admission by Conduct.—In an action for contribution by one claiming to be surety, seeking to establish the relation of co-suretyship between himself and one claiming to be endorser merely, evidence tending lo show that the latter had entered into an agreement with the maker, after the execution of the note, that such maker should pny him five dollars each week, and that under such agreement he had received fifteen dollars, is admissible, not for the purpose of charging the defendant with the money received, but as an admission by conduct.

Same.—The fact that an endorser of a promissory note received money from the principal to apply on the note is not of itself sufficient to entitle one who signs as maker to contribution. The endorser is bound to apply the money so received to a reduction of the debt, but his position is not thereby changed to that of a co-surety.

From the Wayne Superior Court.
C. H. Burchenal, for appellant.

8. A. Forkner, H. C. Fox and J. F. Robbins, for appellee.

. Elliott, J.—It is alleged in the first paragraph of the complaint that, on the 28th day of February, 1876, August Emerick executed a promissory note to George Buhl for

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