1864. (1795.) Talesmen.-222. Whenever it becomes necessary to summon a juror from the by-standers, the court shall instruct the sheriff to call no person as a juror who has either solicited or been recommended for the position; and the court may, of its own motion, or at the request of either party, direct the sheriff to summon the talesmen from persons outside the court-house.

Vacancies on the regular panel may be filled from the by-standers under the direction of the court. Keyes v. State, 122 Ind. 527; Dieg v. Morehead, 110 Ind. 451.

[1881 S., p. 114. In force September 19, 1881.]

1865. (1796.) Rules.-223. The rules of evidence prescribed in civil cases and concerning the competency of witnesses shall govern in criminal cases, except as otherwise provided in this act.

By virtue of this section the parties may impeach their own witnesses by proof of statements out of court contrary to their testimony. Conway v. State, 118 Ind. 482. Proof by the defendant of his good character must be confined to the character particularly relevant to the crime charged. State v. Bloom, 68 Ind. 54.

1866. (1797.) Witness, how summoned.-224. Witnesses on behalf of the state or of the defendant, in a criminal prosecution, may be compelled to attend and testify in open court, if they have been subpœnæd, without their fees being first paid or tendered. The court may recognize witnesses, with or without surety, to attend and testify at the same or the next term.

1867. (1798.) Who are competent witnesses.-225. The following persons are competent witnesses:

First. All persons who are competent to testify in civil actions. Second. The party injured by the offense committed. Third. Accomplices, when they consent to testify. Fourth. The defendant, to testify in his own behalf. But if the defendant 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 shall be the duty of the court, in such case in its charge, to instruct the jury as to their duty under the provisions of this section.

See sections 504-5.

When a wife is the injured party she may testify against her husband. Doolittle v. State, 93 Ind. 272.

The defendant can not insist that the injured party shall be called as a witness by the state. Keller v. State, 123 Ind. 110.

Accomplices, when jointly indicted but separately tried, are competent witnesses when they consent to testify. Everett v. State, 6 Ind. 495; Marshall v. State, 8 Ind. 498; Sloan v. State, 9 Ind. 565; State v. Spencer, 15 Ind. 249; Conway v. State, 118 Ind. 482.

Conviction may be had on the testimony of an accomplice. Ayers v. State, 88 Ind. 275; Nevill v. State, 60 Ind. 308; Johnson v. State, 65 Ind. 269.

If the testimony of an accomplice is corroborated, a conviction of murder in the first degree founded thereon will be sustained. Archer v. State, 106 Ind. 426.

The acts and declarations of persons jointly engaged in committing a crime, made during the commission of the act, are admissible against all so jointly engaged. Rice v. State, 7 Ind. 332; Williams v. State, 47 Ind. 568; Wiley v. State, 52 Ind. 475; Nevill v. State, 60 Ind. 308; Jones v. State, 64 Ind. 473; Walton v. State, 88 Ind. 9; Card v. State, 109 Ind. 415.

Declarations and acts of a joint defendant who is not on trial, made or done prior to the commission of the crime and the forming of a conspiracy, are not admissible against other defendants. Ford v. State, 112 Ind. 373; Walls v. State, 125 Ind. 400; Belcher v. State, 125 Ind. 419.

The acts of a confederate subsequent to the commission of the crime are only admissible against himself. O'Neil v. State, 42 Ind. 346.

One joint defendant may be discharged and used as a witness against the others. Baker v. State, 57 Ind. 255.

When a defendant testifies in his own behalf, he is subject to the same rules, and may be impeached as other witnesses. Clark v. State, 50 Ind. 514; Mershon v. State, 51 Ind. 14; State v. Beal, 68 Ind. 345; Boyle v. State, 105 Ind. 469; Keyes v. State, 122 Ind. 527; Drew v. State, 124 Ind. 9.

If the defendant fails to testify, and the fact is alluded to by counsel for the state in argument, it is cause for a new trial. Long v. State, 56 Ind. 182; Showalter v. State, 84 Ind. 562.

If the defendant fails to testify, failure of the court to properly instruct the jury in regard thereto is not available error unless the defendant requested such instructions in due time. Foxwell v. State, 63 Ind. 539; Grubb v. State, 117 Ind. 277.

The testimony of the defendant should be given due consideration by the jury. McClure v. State, 77 Ind. 287.

The jury is not required as a matter of law to take into consideration the fact that the defendant is interested in determining the weight of his testimony, and it is error for the court to so instruct. Hartford v. State, 96 Ind. 461; Bird v. State, 107 Ind. 154. The jury may consider the interest of the defendant in weighing his testimony. Anderson v. State, 104 Ind. 467; Boyle v. State, 105 Ind.. 469.

Husband and wife may testify for and against each other, except as to communications. Hutchason v. State, 67 Ind. 449; Doolittle v. State, 93 Ind. 272.

The competency of children under ten years of age to testify must be determined by the judge from an examination of the child in open court. Simpson v. State, 31 Ind. 90; Batterson v. State, 63 Ind. 531.

Children over ten years of age are competent witnesses, and the jury must judge of their credibility. Holmes v. State, 88 Ind. 145.

As to when the state may impeach witnesses introduced by the state, see Conway v. State, 118 Ind. 482; Rhodes v. State, 128 Ind. 189.

1868. (1799.) Gaming.-226. Any person called as a witness to testify against another for gaming, or for keeping any gaming apparatus or any device or trick to procure money, or for keeping a place to be used for gaming, or for engaging in any lottery scheme or gift enterprise or raffle, is a competent witness to prove the offense, although he may have been concerned as a party, and he shall be compelled to testify as other witnesses; but such evidence shall not be used against him in any prosecution for such or any other offense, and he shall not be liable to trial by indictment or information, or punishment, for such offense.

Parties to a gaming transaction may be compelled to testify when they are exempted from punishment. Frazee v. State, 58 Ind. 8.

Betting upon the result of an election is gaming, overruling State v. Henderson, 47 Ind. 127; Frazee v. State, 58 Ind. 8.

Betting upon a horse race is gaming. Cheesum v. State, 8 Blkf. 332; Wade v. Deming, 9 Ind. 35.

1869. (1800.) Witness as to misdemeanor.-227. Whenever any person is required to testify touching the commission of any misdemeanor, his evidence therein shall not be used in any prosecution against him, except in case of perjury committed by him therein; and he shall not be liable to trial by indictment or information or to punishment for such offense.

A witness on a trial for a felony may be compelled to answer a question that might tend to convict the witness of a misdemeanor. Bedgood v. State, 115 Ind. 275.

1870. (1801.) Experts as to writings.-228. Persons of skill may be called to testify touching the genuineness of a note, bill, draft or certificate of deposit or other instrument of writing; but three wit nesses at least shall be required to prove the fact of genuineness, except in the case of a larceny thereof. The single evidence of the cashier of the bank purporting to have issued the same may be received as, and deemed, prima facie evidence.

See section 512.

The court must determine the competency of expert witnesses, but the jury must judge of their credibility and weight of their evidence. Forgey v. Bank, 66 Ind. 123; Snyder v. State, 70 Ind. 349; City v. Coombs, 107 Ind. 75; Eggers v. Eggers, 57 Ind. 461; Cuneo v. Bessoni, 63 Ind. 524.

An expert may give an opinion as to the genuineness of a signature by a comparison with one admitted to be genuine. Forgey v. Bank, 66 Ind. 123; Burdick v. Hunt, 43 Ind. 381; Chance v. Indianapolis Co., 32 Ind. 472; Walker v. Steele, 121 Ind. 436. The provisions of this section only apply where a note, bill, draft or certificate of deposit, is the subject of the crime. Jones v. State, 60 Ind. 241.

This section applies only to expert witnesses, and not to persons testifying to facts within their own knowledge. Garmire v. State, 104 Ind. 444.

As to extra compensation of expert witnesses, see Buchman v. State, 59 Ind. 1; Dills v. State, 59 Ind. 15; Gaston v. Board, 3 Ind. 497.

Experts may testify as to the false character of bank bills without proof that there is a bank issuing genuine bills of a like character. Jones v. State, 11 Ind. 357,

1871. (1802) Confessions.-229. The confession of a defendant made under inducement, with all the circumstances, may be given in evidence against him, except when made under the influence of fear, produced by threats; but a confession made under inducement is not sufficient to warrant a conviction without corroborating testimony.

Admissions voluntarily made by persons accused of crime are competent, but confessions caused by threats, fear or compulsion, are not admissible. Smith v. State, 10 Ind. 106; State v. Freeman, 12 Ind. 100; Harding v. State, 54 Ind. 359; Snyder v. State, 59 Ind. 105; Brown v. State, 71 Ind. 470.

When a confession is made under an inducement, the confession with the circumstances may be proven. Benson v. State, 119 Ind. 488; State v. Freeman, 12 Ind. 100. Persons accused of crime may be convicted on their own admissions. Anderson v. State, 26 Ind. 89.

On a charge of bigamy, the admissions of the defendant as to his marriage may be proven. State v. Seals, 16 Ind. 352.

The court must determine the competency of the evidence as to confessions, and must not leave the question for the jury. Brown v. State, 71 Ind. 470.

A confession of guilt in open court will sustain a conviction. Dantz v. State, 87 Ind. 398.

The confession of an accomplice is only admissible against himself. Walls v. State, 125 Ind. 400.

1872. (1803.) General moral character.-230. In all questions affecting the credibility of a witness, his general moral character may be given in evidence.

The general moral character of witnesses may be proven to affect their credibility. Morrison v. State, 76 Ind. 335; Keyes v. State, 122 Ind. 527; Drew v. State, 124 Ind. 9. If a defendant testifies in his own behalf, the state may prove his general bad moral character. Drew v. State, 124 Ind. 9; Robinson v. State, 84 Ind. 452.

Moral character can only be shown by proof of general reputation, and not by proof of single acts of immorality. Long v. Morrison, 14 Ind. 595; Cunningham v. State, 65 Ind. 377; Meyncke v. State, 68 Ind. 401; Rawles v. State, 56 Ind. 433; Bessette v. State, 101 Ind. 85; Spencer v. Robbins, 106 Ind. 580.

The inquiry as to the moral character of a witness should be confined to the time and place of the trial. Walker v. State, 6 Blkf. 1; Rucker v. Beaty, 3 Ind. 70; Rogers v. Lewis, 19 Ind. 405; City v. Cobb, 21 Ind. 492; Abshire v. Mather, 27 Ind. 381; Rawles v. State, 56 Ind. 433; Sage v. State, 127 Ind. 15.

If a witness has been out of the state two years, the inquiry should relate to his character at his residence. Chance v. Indianapolis Co., 32 Ind. 472.

Some latitude is allowed in reference to the inquiry and proof, but the fact to be proven is the character of the witness at the time of the trial. Stratton v. State, 45 Ind. 468; Railway Co. v. Richardson, 66 Ind. 43; Memphis Co. v. McCool, 83 Ind. 392; Pape v. Wright, 116 Ind. 502.

Where a witness is confined in prison for a period prior to prove the character of the witness when committed to prison. 527; Sage v. State, 127 Ind. 15.

the trial, it is proper to Keyes v. State, 122 Ind.

The moral character of a witness can not be proven until the character of the witness is attacked by the adverse party. Johnson v. State, 21 Ind. 329.

When the evidence of a witness is impeached the good character of the witness may be proven to support his testimony. Clark v. Bond, 29 Ind. 555; Harris v. State, 30 Ind. 131; Clackner v. State, 33 Ind. 412; Clem v. State, 33 Ind. 418; Seeger v. Pfeifer, 35 Ind. 13; Railway Co. v. Frawley, 110 Ind. 18.

Mere contradiction among witnesses is no cause for admitting evidence as to their general characters. Pruitt v. Cox, 21 Ind. 15; Brann v. Campbell, 86 Ind. 516; Fitzgerald v. Goff, 99 Ind. 28.

The character of an impeaching witness may be attacked, and he may be supported as other witnesses. Phillips v. Thorn, 84 Ind. 84.

It is not proper to ask an impeaching witness whether or not he would believe the impeached witness under oath. Walton v. State, 88 Ind. 9.

This section applies to prosecutions for crimes committed before its enactment, the same as those committed afterwards. Robinson v. State, 84 Ind. 452.

1873. (1804.) Discharge of defendant to testify.-231. When two or more persons are included in one prosecution, the court may, at any time before the defendant has gone into his defense, direct any defendant to be discharged, that he may be a witness for the state. A defendant may also, when there is not sufficient evidence to put him on his defense, at any time before the evidence is closed, be discharged by the court for the purpose of giving testimony for a co-defendant. The order of discharge is a bar to another prosecution for the same offense.

The state, by leave of the court, may dismiss as to one joint defendant and use him as a witness. Baker v. State, 57 Ind. 255.

Objection to such discharge can not first be made in the supreme court. Shircliff t. State, 96 Ind. 369.

1874. (1805.) Depositions.-232. The defendant may, by leave of court, take the depositions of witnesses residing out of the state, to be read on the trial; but, before leave is given, the defendant must enter of record his consent that the depositions of witnesses residing out of the state may be taken and read on behalf of the state, relative to the same matter; and the defendant may, on the same terms, by leave of court, or by notice to the prosecuting attorney, take the deposition of any witness conditionally.

This section is constitutional, as the accused may waive his right to be confronted with the witnesses on the part of the state. Butler v. State, 97 Ind. 378.

If witnesses reside outside of the state, diligence must be shown in taking their depositions in order to obtain a continuance to procure their evidence. Jones v. State, 11 Ind. 357; McDermott v. State, 89 Ind. 187.

1875. (1806.) Proof in rape.-233. In prosecutions for the offense of rape, proof of penetration shall be sufficient evidence of the commission of the offense.

The slightest penetration is sufficient, and penetration may be proven by circumstantial evidence. Taylor v. State, 111 Ind. 279.

1876. (1807.) Corroborating evidence in seduction, etc.-234. In prosecutions for seduction, and for enticing and taking away a female for the purposes of prostitution, the evidence of the female must be corroborated to the extent required as to the principal witness in cases of perjury.

As to what is a sufficient corroboration of the evidence of the female, see LaRosae vState, 132 Ind. 219.