taken in the cause from the submission of the case to the jury to the rendition of judgment; Sturgeon v. Gray, 96-166; Bruce v. State, 87-450, approving Jenks v. State, 39-1. 2. The bill of exceptions must be filed at the time of the trial or within such time as the court may then allow; Hunter v. State, 102-429; S. C., 101-406; not exceeding sixty days from the day on which judgment is rendered; Calvert v. State, 91-473; Colee v. State, 75-513; Jenks v. State, 39-1. 3. The only material difference between this section and section 120 of the criminal code of 1852 is that under the old code bills of exceptions were required to be "made out and presented to the judge during the term, as the court may allow ", while, by this section, such bills must be made out and presented at the time of trial or within such time, thereafter, as the judge may allow. There is this further difference, that, under the old law the exception must be taken at the time of the decision", while by this section "the exception must be taken at the time of the trial"; Bruce v. State, 87-452. 4. Leave to file a bill must be asked and obtained during the trial. Leave asked and obtained ten days after final judgment is too late, as the judgment terminates the trial; Hunter v. State, 101-407. Such leave must be obtained at the term at which verdict is rendered unless the act of the court carries the case over to another term; Heath v. State, 101-514. 5. The power to extend the time for making out and presenting a bill is not exhausted until judgment is rendered; Bruce v. State, 87-450; Jenks v. State, 39-1. When a motion for new trial is overruled and sixty days are given, in which to make and present the bill and the cause is continued and no bill is made during such period, but, at the following term, at the time the judgment is rendered the court gives defendant thirty days in which to prepare and file a bill, within which time a bill is filed, such bill is properly in the record, on appeal; Barnaby v. State, 106–540. 6. Affidavits on a motion for continuance, preserved in a bill of exceptions and filed with the clerk after the expiration of the term, no time being asked or given in which to file, the bill will not become part of the record and it can not be considered on appeal; Shircliff v. State, 96-372; Colee v. State, 75-511. 7. A defendant who flees, to escape judgment, and remains beyond the jurisdiction of the court for two years can not have exceptions entered, nor can he secure a bill of exceptions, after such a lapse of time; Heath v. State, 101-514. 8. Exceptions must be taken during the trial. Time may be allowed in which to embody them in a proper bill; Colee v. State, 75-513. 9. Under a fair construction of this statute, errors of law, occurring at the trial, must be excepted to at the time the decision is made. Exceptions so taken will constitute a part of the record, if shown by bill of exceptions, signed by the judge and filed by the clerk at or before the time the judgment is rendered or within such time, thereafter, as the court may allow, not exceeding sixty days; Pence v. State, 110-96; Barnaby v. State, 106-539; Hunter v. State, 102-428; 101-406; Sturgeon v. Gray, 96-166; Calvert v. State, 91-473, each approving and following Bruce v. State, 87-450. 10. The date of filing the bill shown by the record of the trial court and correctly copied into the transcript filed in the supreme court, can not be contradicted, on appeal, by a mere ex parte affidavit; Combs v. State, 75-216. 1848. Contents of bill. All exceptions not saved by the entry of the clerk, as part of the proceedings in court, must be embraced in a bill; Leverich v. State, 105278. 2. Unless the bill shows, affirmatively, that it contains all the evidence given in the trial court, the supreme court will not pass on the evidence. The case is not met by the statement, "this was all the evidence offered, by the plaintiff and the defendant, on the trial of this cause"; Garrison v. State, 110-146. 3. It is only where all the essential facts, necessary to show the ground on which a ruling of the trial court was made, appear on the face of the legal record that no bill of exceptions is required, to present such ruling for review on appeal. The mere copying of papers into the transcript, by the clerk, does not make them parts of the record; State v. Cooper, 103–76. 4. The statement of a conclusion of law and fact in a bill can not take the place of evidence, required to present an error on appeal; Powers v. State, 87-155. 1849. Tender of bill. Bill of exceptions not presented to the judge nor filed within the time given is no part of the record, on appeal; Andis v. Personett, 108-207; Ford 2. Griffin, 100-88. ARTICLE 20-JUDGMENT. 1850. When pronounced. An error of the trial court in imposing a penalty not assessed by the jury nor authorized by the statute defining the offense, of which defendant is found guilty, is not available, on appeal, unless the question was raised in the trial court, by an objection in some form to the judgment; Skaggs v. State, 108-61. 1860. Stay. Under the code of 1852 (2 Rev. Stats., 1876, p. 407) the entry of replevin bail, as well as payment, terminated the power to imprison under a judgment of conviction; Dinckerlocker o. Marsh, 75-551. 2. Where fines and costs have been assessed against a licensed liquor vendor, for a violation of the provisions of the liquor law, and his replevin bail has been compelled to pay and has paid such fines and costs, such bail may be subrogated to the rights of the state in the licensee's bond and may recover thereon the amount by him so paid, with interest and costs (sect. 1214); Kane v. State, 78-107. 1863-4. Stay of fine-Arrest. These sections do not conflict with section 59, but do conflict with section 69 of the bill of rights (ante) and are void, so far as they attempt to restore a right to imprison where that right has been fully terminated by the entry of replevin bail; Dinckerlocker v. Marsh, 75-551. 1872. Death penalty. This section, as to the death penalty, is mandatory and the connection in which it is found adds emphatically to its force. No power, save that of the law makers, can alter the rule nor can a condemned man shorten his own life by consenting that he may be hanged at an earlier day than that prescribed by an imperative law; nor can he, by consent or agreement, make it proper to hang him in a manner, or at a time different from that prescribed by a plain and positive statThe statute provides that a man condemned to death shall he hung. No agreement, express or implied, would authorize a court to change the mode of inflicting death to poisoning, beheading or shooting. So, too, the statute prescribes how the execution shall be conducted and the consent of the condemned man would not authorize the court to adjudge that it should be conducted in a manner differing from that prescribed. A man can be executed, only, according to law and this rule must extend to time, place and manner; Koerner v. State, 96-244. ute. ARTICLE 21-APPEAL. 1881. To supreme court. The civil code does not govern appeals in criminal cases; Sturm v. State, 74-282; State v. Wallace, 41-445. 2. The statute provisions of this section and sections 1885, 1888, evidently contemplate appeals from final judgments and do not allow appeals from rulings made on pleadings or made during the trial; Wingo v. State, 99-344; State v. Spencer, 92-115; State v. Ely, 11-313; Pigg v. State, 9-363; Reese v. Beck, 9-238; Reese v. State, 8416; Wooley v. State, 8-377; Miller v. State, 8-325; Farrel v. State, 7-345. 1882. By state - Causes. An appeal may be taken, to the supreme court, by the state from a judgment quashing an information. It does not, necessarily, follow that defendant must be discharged to make a judgment quashing an indictment or information complete as a final judgment; State v. Allen, 94-442. 2. An appeal, by the state, from a ruling setting aside a verdict and granting a new trial is not a final judgment. It will be dismissed; State v. Spencer, 92-115. 1883. Transcript on appeal by state. The original indictment, with all the indorsements required to be upon it, is a necessary part of the record, when a prosecution rests thereon. The same is true of an information; Hoover v. State, 110–353. 2. Under this section it is not the duty of the supreme court, on an appeal by the state from a question reserved, sponte sua, to direct the clerk to certify up a correct record. The writ of certiorari can issue only on motion sustained by affidavit, showing a diminution of the record; State v. Hallowell, 91-377. 3. As a general rule the fact, though apparent, that the transcript is imperfect is no sufficient ground for the dismissal of a criminal appeal. In such case the remedy of the complaining party is by certiorari to correct the transcript; State v. Weil, 89-287. 1885. Appeal, when. Defendant may within one year after judgment take an appeal, by serving a written notice upon the clerk of the court in which the judg ment was rendered and on the prosecuting attorney. Unless, however, the tran script be filed in the supreme court within ninety days after such service of notice the appeal will be dismissed; Johnson v. Stephenson, 104-370; Farrel v. State, 85-222; Winsett v. State, 54-437. 1887. How taken. The clerk on the conviction of defendant, when he appeals, is required by law to make out and deliver to him a transcript of proceedings etc. without previous payment of fees; State v. Wallace, 41-445. 2. Recitals of the clerk as to the manner in which the grand jury was selected are not, properly, part of the record; Henning v. State, 106-387. 3. An appeal on the part of the state must be taken in the manner prescribed by the statute. The notice constitutes the appeal; State v. Quick, 73-148. 4. Service of notice of appeal upon the clerk of the court is required in cases in which the state appeals; but, where the defendant appeals service on the prosecuting attorney alone is sufficient; Darr v. State, 82-12. 5. Notice of appeal, by the state, served on defendant in a county other than that wherein the trial took place is insufficient; State v. Quick, 73-148. 6. An appeal is considered as taken on the day on which notice is fully served on the proper officers or party; State v. Quick, 73-147; Winsett v. State, 54-437. The transcript of the record must be filed, in the supreme court, within thirty days thereafter, or the appeal will be dismissed; Price v. State, 74-554. 1888. By defendant. So much of this section as authorizes the supreme court or a judge thereof, on appeal from a judgment of conviction, to suspend the sentence of death is unconstitutional and void; Butler v. State, 97-375. 1889. Trial of appeal. An appeal pending in the name of a convicted defendant who has escaped from lawful custody will be dismissed; Sargent v. State, 96–66. 1891. To disregard technical errors. This section requires the supreme court to disregard errors which do not prejudice the substantial rights of defendant; Wood v. State, 92-272. It expressly forbids the reversal of a judgment unless it appears, affirmatively, that substantial injury was done, the appellant, by the ruling of the court; Henning v. State, 106-400; Brown v. State, 105-385; Graeter v. State, 105–274; Epps v. State, 102-539; Wood v. State, 92-269. 2. Technical errors, as this section is construed, include merely abstract and practically harmless errors; Epps v. Smith, 102–557. 3. On appeal, appellant must show that errors were committed prejudicial to his rights. Where evidence is necessary to make it appear that the substantial rights of the defendant were prejudicial it must be in the record; Butler v. State, 97-380. 4. The sufficiency of an information may be questioned for the first time, in the supreme court, by assignment of error. Only, however, on the ground that it does not charge a public offense; Pattee v. State, 109-546. 5. Overruling a motion to quash an affidavit, charging a malicious injury to property, will not authorize the reversal of a judgment where the only defect is immaterial uncertainty; Sample v. State, 104-290. 6. To render an irregularity, in the trial of a criminal cause, harmless it must appear, satisfactorily, that the substantial rights of defendants were not prejudiced. The question as to regularity, in fact, is for the decision of the trial court. Where, however, the irregularity is shown by the record, without question as to its occurrence, it will be presumed, on appeal, in the absence of an affirmative showing to the contrary, that it contributed to the conviction and was prejudicial; Riley v. State, 95-449; see Creek v. State, 24-151. 7. The trial of a cause on an erroneous theory is a mis-trial, authorizing a reversal of the judgment; unless it be that a just conclusion was reached on the merits; Ind. etc. Co. v. Quick, 109-301. 8. Although the statute (sect. 1829) requiring that the names of the jury must be called is mandatory in form and although such provisions should be strictly complied with, yet, the omission to call such names is not a material, or fatal, error; unless it further appears that the jurors did not, in fact, all appear at the time the verdict was rendered in open court; Norton v. State, 106-165. 9. An error in rejecting evidence going to the question of intent combining with the act, charged as criminal, which might strengthen or rebut the presumption of crime, is not a technical error; it may be fatal; Norris v. State, 95-77. 10. Verbal inaccuracies in an instrument or technical errors in the statement of merely abstract propositions of law, are not available for the reversal of a judgment where they result in no substantial harm to defendant. Where, taken as a whole, the instructions correctly charge the jury in respect to the law applicable in such case no harm is done; Brown v. State, 105-391. 11. Error in giving or refusing instructions, if any, being merely abstract and, hence, harmless and the verdict being right under the evidence there is no reason for a reversal of the judgment; Strong v. State, 103–6. 12. A brief that instructions as given are wrong, without more; that taken to. gether they failed to properly inform the jury upon the law and that so far as they relate to a given subject they did not enlighten, but misled the jury, do not meet the requirements of a brief. The supreme court can not search through the record for error on general statements that error is contained in it. Errors not specifically pointed out, with some kind of argument, are waived; Powers v. State, 87-153; Millikan v. State, 70-283. 1892. Power of supreme court. The settled practice forbids the correction of the record of a case after such case has been decided; State v. Dixon, 97-126; see Warner v. Campbell, 39-409; Pittsb. etc. R. R. Co. v. Van Houten, 48-90; State v. T. H. etc. R. R. Co., 64-297. 1893. Rehearing. This section, with section 662, precludes an action to collect an affirmed judgment, in an action on the bond on appeal to the supreme court until sixty days, given for the filing of a petition for rehearing and the filing of the opinion in the trial court; Railsback v. Greve, 49-271; S. E., Buchanan v. Milligan, 68-79; see M'Intosh v. Robison, 68-120. ARTICLE 22 - GENERAL PROVISIONS. 1897. Corporations punishable. This section applies to nuisances erected prior to its adoption, if afterward maintained. This for two reasons: (1) every continuance of a nuisance is a fresh nuisance, and (2) no vested right can grow out of the commission of an indictable nuisance; State v. L'sville etc. Co., 86-116. 1901. Repealing and saving clauses. The criminal code and the act defining public offenses, though approved on different days, took effect simultaneously and are to be construed in pari materia. They took effect September 19, 1881; Sanders v. State, 77-228 [1881 S., p. 174. In force September 19, 1881.] 1902. Treason. 1. Whoever levies war against this State, or knowingly adheres to its enemies, giving them aid or comfort, is guilty of treason against the State of Indiana, and, upon conviction thereof, shall suffer death or be imprisoned in the State prison during life, in the discretion of the jury. 1903. Misprision of treason. 2. Whoever, having knowledge that any person has committed treason or is about to commit treason against this State, willfully omits or refuses to give information thereof to the Governor or some Judge of the State, as soon as may be, is guilty of misprision of treason, and, upon conviction thereof, shall be imprisoned in the State prison for any period not exceeding twenty-one years and fined in any sum not exceeding ten thousand dollars, and shall also be disfranchised and rendered incapable of holding any office for any period not less than ten years. [1881 S., p. 174. In force September 19, 1881.] 1904. Murder in first degree. 3. Whoever purposely and with premeditated malice, or in the perpetration of or attempt to perpetrate, any rape, arson, robbery, or burglary, or by administering poison or causing the same to be done, kills any human being, is guilty of murder in the first degree, and, upon conviction thereof, shall suffer death or be imprisoned in the State prison during life, in the discretion of the jury. 1. The dying declarations of the victim are admissible, if it clearly appear that he had no hope of recovery and believed death so near as to supersede all motives to |