30 (Ind.) Conviction may be had for as-274 (Ind.) Application to withdraw plea sault and battery with intent to commit a fel- of guilty is addressed to sound discretion of ony, although felony is actually committed.- trial court.-Mahoney v. State, 149 N. E. 444. Straw v. State, 149 N. E. 430. Court is not bound by agreements of prosecuting attorney and sheriff that they would use influence to have sentence suspended.-Id. tablish innocence of crime charged.—Id. Allegations in affidavit held insufficient to es

III. PARTIES TO OFfenses.

59(1)_(N.Y.) "Accomplice" and "principal" defined.-People v. Crossman, 149 N. E. 330. 59(4) (III.) Where defendants have common design, whatever some of them did in pursuance of act was act of all.-People v. Bogue,286 (Ind.) Court held to have erred in re

149 N. E. 750.

IV. JURISDICTION.

ognized.-Mahoney v. State, 149 N. E. 444. 275 (Ind.) Plea of nolo contendere not rec

jecting offered plea of insanity.-Barber v. State, 149 N. E. 896.

302(1) (Ind.) Defendant's request for discharge for irregularities of judge and jury held properly denied.-Watson v. State, 149 N. E. 432.

98 (III.) That accused is in court is sufficient to require him to answer indictment against him.-People v. Klinger, 149 N. E. 799. 98 (Ind.) Complete jurisdiction acquired (A) Judicial by court and grand jury in prosecution for manslaughter.-Watson v. State, 149 N. E. 432.

99 (III.) Jurisdiction of subject-matter cannot be conferred by consent.-People v. Minto. 149 N. E. 241; People v. Buffo, 149 N. E.

271.

X. EVIDENCE.

Notice, Presumptions,
Burden of Proof.

and

304 (1) (III.) It is well known that keepers of soft drink parlors often resort to sale of intoxicating liquors under cloak of their business.-People v. Lewis, 149 N. E. 817.

105 (III.) Indictment or information charg-304(16) (Ind.) Supreme Court can take noing a crime a necessary preliminary to contice of its own records in another case.-Walviction for that crime, and may not be waived. lace v. State, 149 N. E. 57. -People v. Minto, 149 N. E. 241.

105 (III.) Jurisdiction of subject-matter cannot be waived by consent.-People v. Buffo,

149 N. E. 271.

105 (Ind.) Lack of jurisdiction may be called to court's attention in any manner at any stage of proceedings.-Watson v. State, 149 N. E. 432.

V. VENUE.

(B) Change of Venue.

take

304(16) (Ind.) Supreme Court can notice of its own records in another case.Robbins v. State, 149 N. E. 726.

306 (Ind.) Fact may be established by inferences drawn from other proved facts.-Hiner v. State, 149 N. E. 168.

318 (Ind.) Evidence withheld by state presumed to be unfavorable to prosecution.--Hiner v. State, 149 N. E. 168.

321 (Ind.) Presumption is that proceedings were regular.-Farnsley v. State, 149 N. E. 436.

121 (Ind.) Change of venue from judge must be granted, where proper affidavit filed. 331 (1.) Evidence of insanity at time of -Landis v. State, 149 N. E. 438. crime casts burden on state to prove defendant's sanity beyond reasonable doubt.-People v. Saylor, 149 N. E. 767.

VIII. PRELIMINARY COMPLAINT, AFFI-
DAVIT, WARRANT, EXAMINATION,
COMMITMENT, AND

TRIAL.

SUMMARY

252(3) (Ind.) Affidavit alleging disturbance of assemblage under statute held sufficient against motion to quash.-Kirschbaum v. State, 149 N. E. 77.

(B) Facts in Issue and Relevant to Issues, and Res Gestre.

338(4, 5) (III.) Evidence that wholesale druggist sold arsenic to retailer does not prove sale by retailer to accused.-People v. Zalimas, 149 N. E. 759.

351(1) (Mass.) Evidence of court interpreter that in previous case defendant had no IX. ARRAIGNMENT AND PLEAS, AND difficulty in understanding English held competent.-Commonwealth v. Patalano, 149 N. E.

262 (Ind.) Waiver of arraignment by at-358 (Mass.) Excluding question to witness torney for accused in her absence, but by her as to whether paper shown him was birth cerdirection, held binding.-Mahoney v. State, 149 tificate held proper.-Commonwealth v. Cantor, N. E. 444. 149 N. E. 205.

273 (III.) Accused entitled to reversal of conviction, when information states no defense, notwithstanding plea of guilty.-People v. Nelson, 149 N. E. 226.

273 (III.) Neither a verdict of guilty nor a plea of guilty establishes guilt, if indictment or information charges no criminal offense.People v. Minto. 149 N. E. 241.

273 (Ind.) Entering plea of guilty by attorney for accused in her absence, but by her direction, held binding.-Mahoney v. State, 149 N. E. 444.

274 (III.) Withdrawal of plea of guilty made with full understanding of nature of charge discretionary with court.-People v. Ensor, 149 N. E. 737.

Plea of guilty may be withdrawn under certain conditions.-Id.

Denial of motion to withdraw plea of guilty of charge of attempt to burglarize held not abuse of discretion.-Id.

274 (Ind.) Application to withdraw voluntary plea of guilty addressed to sound discretion of court.-Farnsley v. State, 149 N. E. 436.

No abuse of discretion shown in overruling motion to change plea of guilty to not guilty.

395 (Ind.) Liquor, taken in an unlawful | 562 (Ind.App.) Defendant cannot be consearch, improperly admitted as evidence.-Eiler victed of crime charged unless proof and findv. State, 149 N. E. 62. ings sustain charge.-Nigh v. State, 149 N. E. 914.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

395 (Ind.) Admitting in evidence articles found in camp on land, whose owner had given officers permission to go on land, held not error. -Shade v. State, 149 N. E. 348.

633(1) (III.) Duty of presiding judge to see that proceedings conducted in such manner as will inspire respect for law.-People v. Saylor, 149 N. E. 767.

639(2) (Mass.) Refusal to take case from jury because of additional counsel assisting prosecution held without error.-Commonwealth V. Lane, 149 N. E. 663.

413(1) (Mass.) Statement of defendant at time of arrest held self-serving.-Common-639(6) (Mass.) Denial of request for rewealth v. Cantor, 149 N. E. 205. moval of attorney at law assisting assistant district attorney in prosecution held without error.-Commonwealth v. Herman, 149 N. E.

419, 420(11) (Ind.) Testimony of conversation of police officers with wife of accused in latter's absence held inadmissible because hearsay.-Hiner v. State, 149 N. E. 168.

419, 420 (13) (III,) Record of sale over telephone held ir.admissible as hearsay.-People v. Zalimas, 149 N. E. 759.

(1) Opinion Evidence.

198.

656(3) (Mass.) Justice's statement that it was for jury whether dying declaration was such within law as he would explain to them held without error.-Commonwealth v. Cantor. 149 N. E. 205.

Trial judge may state finding as to preliminary facts to jury.-Id.

476 (Mass.) Medical witness properly per-659 (Ind.) Refusal to discharge jury bemitted to testify that conditions found in autop- cause state's attorney's statement applauded sy were consistent with use of instruments with held not error.-Campbell v. State, 149 N. E. intent to procure abortion.-Commonwealth v. 903. Cantor. 149 N. E. 205.

(C) Reception of Evidence.

~478(2) (III.) Farmer, without special study held not qualified as handwriting expert.-Peo-670 (III.) Evidence of conspiracy to get ple v. Smith, 149 N. E. 3. defendant's property held properly excluded for 489 (Mass.) Limiting cross-examination by want of proper foundation and offer to prove. defense of medical witness as to accidental-People v. Wood, 149 N. E. 273. abortions held without error.-Commonwealth 671 (Ind.) Reading witness' written statev. Cantor, 149 N. E. 205. ments previously made containing inadmissible matter held error.-Parker v. State, 149 N. E. 59.

491(1) (III.) Statute relating to proof of handwriting by comparison applies to trial of criminal cases.-People v. Smith, 149 N. E. 3. Statute relating to proof of handwriting by comparison construed.-Id.

673 (2) (Mass.) Admitting testimony of accusation made by third person against defendant just prior to arrest held without reversible error.-Commonwealth v. Zaidon, 149 N. E. 680(!) (III.) In prosecution for assault 5072 (N.Y.) Evidence held sufficient to to commit murder, objections to certain queswarrant finding that employees were accom- tions on cross-examination held properly susplices in illegal transaction.-People v. Cross-tained.-People v. Harrison, 149 N. E. 236. man, 149 N. E. 330.

(J) Testimony of Accomplices and Code- 550.

fendants.

554 (Ind.) Defendant's testimony considered as that of any other witness.-Scheerer v. State, 149 N. E. 892.

(D) Objections to Evidence, Motions to Strike Out, and Exceptions.

691 (III.) Defendants, not connected with larceny, cannot complain of illegal search of residence of third person.-People v. Taylor, 149 N. E. 797.

693 (Ind.) Objections to improper questions asked witness must be made before answer.-Parker v. State, 149 N. E. 59. ·

696 (2) (Mass.) Objection to question held unavailing where no motion was made to strike hearsay testimony elicited.-Commonwealth v. Patalano, 149 N. E. 689.

697 (Mass.) Exception to evidence as a whole not sustained.-Commonwealth v. Zaidon, 149 N. E. 550.

560 (Ind.) Weighing of evidence does not (E) Arguments and Conduct of Counsel. extend to calculation of mere suspicions, possi-700 (III.) Official duty of state's attorney bilities, or suppositions to support finding of to see that defendant has fair trial.-People v. guilty. Hiner v. State, 149 N. È. 168. Saylor, 149 N. E. 767.

562 (Ind.) Testimony held sufficient to support conviction for possession of still.Gmeiner v. State, 149 N. E. 728..

722 (2) (III.) State's attorney may comment on accused's conduct, in argument.People v. Wood, 149 N. E. 273.

722(3) (III.) Reversal of conviction for in- | misled as to law of case.-Robbins v. State, cest held not justified by state's attorney's ar- 149 N. E. 726. gument.-People v. Wood, 149 N. E. 273.

723 (3) (ill.) State's attorney may dwell on evil results of crime, and urge fearless administration of law, in argument.-People v. Wood, 149 N. E. 273.

730 (1) (1.) State's attorney's improper remarks held not reversible error, where objections were sustained and jury instructed to disregard them.-People v. Mindeman, 149 N. E. 27.

(F) Province of Court and Jury in General.

822 (1) (Ind.) Instruction construed as entirety.-Campbell v. State, 149 N. E. 903. Erroneous instruction not declared reversible error, unless, when considered with entire charge, it is harmful to appellant.-Id.

822 (6) (Ind.) Error in instruction as to maintenance of common nuisance within Prohioition Law held not to require reversal.Robbins v. State, 149 N. E. 726.

822 (6) (Ind.) Erroneous portion of instruction held not to have misled jury to defendant's injury, in view of remainder of instruction.-Campbell v. State, 149 N. E. 903.

822 (16) (Ind.) Alleged erroneous instrucsonable doubt should be read with other instruction on sufficiency of evidence to remove reation on reasonable doubt.-Campbell v. State,

149 N. E. 903.

731 (Mass.) Statute prohibiting court from charging as to matters of fact relates to charge only. Commonwealth v. Cantor, 149 N. E. 205. ~742(1) (III.) Province of jury to determine which set of witnesses whose testimony 823(1) (II.) Instruction when read with conflicts is telling truth.-People v. Harrison, another, held not to deny right of accused to judge whether victim of her assault intended to do her great bodily harm.-People v. Harri

149 N. E. 236.

742(1)(Mass.) Credibility of expert held for jury.-Commonwealth v. O'Brien, 149 N. E.

600.

son, 149 N. E. 236.

(H) Requests for Instructions.

742 (2) (N.Y.) Evidence held to make question whether witnesses against defendant were accomplices one for jury.-People v. Crossman, 829(1) (III.) Refusal of instructions, not 149 N. E. 330. correctly stating the law or governed by other instructions, held not erroneous.-People Smith, 149 N. E. 3.

As matter of law, holding that witnesses had no connection with making illegal contract not justified by evidence.-Id.

762 (5) (Ohio) Court's conclusions as to guilt of defendant held reversible error.-Fouts v. State, 149 N. E. 551.

763, 764 (7) (Mass.) Instruction held to submit issue of defendant's guilt or innocence. -Commonwealth v. Green, 149 N. E. 140.

(G) Necessity, Requisites, and Sufficiency of Instructions.

772 (4) (Ind.) Date of offense need not be specified in instruction, when shown by allegations and proof to have occurred on certain day. -Campbell v. State, 149 N. E. 903.

778(7) (III.) Instruction that every person accused of crime presumed to be sane until contrary shown held erroneous.-People v. Saylor, 149 N. E. 767.

783(1) (Mass.) Instruction to consider testimony of police officer only in case liquor was found to be intoxicating not erroneous.-Commonwealth v. Zaidon, 149 N. E. 550.

785(3) (III.) Instruction that jury might determine credibility of witnesses from all surrounding circumstances appearing on trial, held reversible error.-People v. Toohey, 149 N. E.

795.

785 (3) (Ind.) Charge on jury's duty to reconcile conflict in testimony held erroneous. -Scheerer v. State, 149 N. E. 892.

786(2) (III.) Instruction that jury, in determining defendant's credibility, might consider his demeanor during the trial held reversible error.-People v. Toohey, 149 N. E. 795.

V.

term

829(5) (II.) Use in instruction of self-defense without defining it held not ground for complaint.-People v. Harrison, 149 N. E. 236.

jury to act relied on by state, held not error, in 829(13) (II.) Instructions, not limiting view of another instruction.-People v. Wood, 149 N. E. 273.

830 (III.) Refusal of instructions, not correctly stating the law, held not erroneous.— People v. Smith, 149 N. E. 3.

(I) Objections to Instructions or Refusal Thereof, and Exceptions.

844(2) (Ohio) Exception to error in not charging on manslaughter not saved by general exception.-Todor v. State, 149 N. E. 326.

938(1) (III.) Applications for new trial for newly discovered testimony not favored.-People v. Mindeman, 149 N. È. 27.

786(3) (Ind.) Charge to weigh defendant's testimony as that of any witness and consider his interest held erroneous.-Scheerer v. State, 938(2) (III.) Newly discovered evidence 149 N. E. 892.

789(13) (Ind.) Charge on reasonable doubt held erroneous.-Scheerer v. State, 149 N. E. 892.

796 (Ind.) Defendant held entitled to have instruction stating correct penalty for offense given, though erroneous instructions would not have been cured by it.-Campbell v. State, 149 N. E. 903.

805(1) (1.) Where guilt is close question, jury must be accurately instructed and record free from substantial errors.-People v. Mulcahy, 149 N. E. 266.

must have been undiscoverable by due diligence before trial to justify new trial.-People v. Mindeman, 149 N. E. 27.

939 (2) (1.) New trial for newly discovered evidence held properly refused for lack of diligence.-People v. Mindeman, 149 N. E. 27. 941 (I) (II.) Newly discovered testimony must be conclusive, not merely cumulative, to justify new trial.-People v. Mindeman, 149 N. E. 27.

945 (2) (II.) New trial held not warranted by newly discovered testimony of defendant's confederate in commission of larceny.-People v. Mindeman, 149 N. E. 27.

814(1) (Ind.) Instruction as to punishment for second offense error, when no charge 951(1) (Ind.) Motion for new trial, after of previous conviction in affidavit.-Campbell v. motion in arrest of judgment, improper.-SimpState, 149 N. E. 903. son v. State, 149 N. E. 53. 822(1) (Ind.) Error in particular instruc-951(1) (Ind.) Motion for new trial not contion will not justify reversal unless jury is sidered, where motion in arrest of judgment

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER made prior thereto has been overruled; 1925 | dence should be specified as cause for new statute not being retroactive.-Kirschbaum v. trial, as being an irregularity, and not as inState, 149 N. E. 77. dependent error.-Chappelle v. State, 149 N. E. 163.

951(1) (Ind.) Motion in arrest of judgment presented before motion for new trial cuts off latter motion.-Genett v. State, 149 N. E. 894. 968 (13) (Ind.) Failure of justice of peace to make a record showing fact of filing original affidavit held not ground to arrest judgment.— | Kirschbaum v. State, 149 N. E. 77.

1064 (7) (Ind.) No question was presented on instructions for consideration of reviewing tribunal.-Wallace v. State, 149 N. E. 57.

(D) Record and Proceedings Not in Rec

ord.

970(1) (III.) If one of several counts on which there was a general verdict of guilty is 1088(6) (III.) Motions and petitions, to begood, denial of motions to quash and in arrest come a part of record, must be incorporated of judgment is not error.-People v. Newcom, in bill of exceptions or stenographic report 149 N. E. 269. signed by trial judge.-People v. Levin, 149 N. E. 230.

970(3) (Ind.) When judgment may be arrested stated.-Watson v. State, 149 N. E. 432. 970(4) (Ind.) When judgment may be arrested stated.-Watson v. State, 149 N. E. 432. 970(7) (1.) Either on plea of guilty or verdict of guilty defendant may question indictment or information by motion in arrest of judgment or on writ of error.-People v. Minto, 149 N. E. 241.

XIV. JUDGMENT, SENTENCE, AND FINAL
COMMITMENT.

Petition to impound liquor and to exclude it from evidence, and court's ruling thereon, not part of bill, are not parts of record, and will be stricken therefrom.-Id.

1088(19) (Ind.) Entry in record of statement by judge that defendant was advised of his rights of no effect.-Farnsley v. State, 149 N. E. 436.

~1090(11) (Ind.) Question regarding sufficiency and exclusion of evidence in absence of bill of exceptions containing evidence cannot ~995(3) (III.) Judgment not fixing term of be considered on appeal.-Coleman v. State, 149 N. E. 162. imprisonment must describe crime so it can be 1090 (19) (Ind.) Alleged error in overruling identified by warden of penitentiary.-People challenge to juror cannot be reviewed in abv. Wood, 149 N. E. 273. 995(7) (III.) Judgment on conviction for sence of bill of exception showing challenge and incest held insufficient as not definitely sentenc-grounds therefor.-Napier v. State, 149 N. E. ing to imprisonment in place fixed by law.People v. Wood, 149 N. E. 273.

XV. APPEAL AND ERROR, AND
CERTIORARI.

49.

1090(19) (Ind.) Examination of juror must be brought into record by bill of exceptions to secure review of trial court's action on appeal as to his competency.-Wallace v. State, 149 N. E. 57.

(A) Form of Remedy, Jurisdiction, and 1092 (6) (Ind.) Questions requiring exami

Right of Review.

1013 (Mass.) Appeals not properly before Supreme Judicial Court.-Commonwealth Lane, 149 N. E. 663.

V.

(B) Presentation and Reservation in Lower Court of Grounds of Review.

nation of evidence cannot be considered, where after term without leave.-Williams v. State, bill of exceptions containing evidence was filed 149 N. E. 441.

1092 (10) (III.) Refusal to permit incorporation of defendant's offer of proof and ruling thereon in bill of exceptions to exclusion of testimony in support of motion for new trial 1030(4) (N.Y.) Alleged errors, as present-held error.-People v. Green, 149 N. E. 231. ed by exceptions to rulings of trial court, held only errors for consideration of Court of Appeals. People v. Von Brandenburg, 149 N. E. 221.

1032 (5) (II.) Either on plea of guilty or verdict of guilty defendant may question indictment or information by motion in arrest of judgment or on writ of error.-People v. Minto, 149 N. E. 241.

Reviewing court will not affirm a judgment, where defendant was charged with no offense against law in indictment or information, though defendant did not object on that ground at trial or in reviewing court.-Id.

1095 (III.) Where bill of exceptions stricken, only errors on record proper considered.People v. Newcom, 149 N. E. 269.

1095 (II.) Reliance for reversal on alleged errors, reviewable only by bill of exceptions, held to require affirmance, where bill stricken.-People v. Murphy. 149 N. E. 422.

was

1103 (III.) Abstract failing to show judgment rendered against defendant in circuit court is defective.-People v. Newcom, 149 N. E. 269.

1114(1) (l.) Invalidity of Prohibition Act not presented for review where petition to impound seized liquors and court's ruling thereon were stricken from record.-People v. Levin, 149 N. E. 230.

1032(5) (II.) That indictment does not charge offense available on writ of error.-Peo-1114(1) (Ind.) Appellant must present ple v. Larson, 149 N. E. 579. record affirmatively showing that trial court 1036 (2) (Mass.) Objection that question committed error.-Grose v. State, 149 N. E. was not limited to period covered by indict- 722. ment not made at trial cannot be made on ap-1115(2) (Ind.) Court's act in overruling peal.-Commonwealth v. Patalano, 149 N. E. defendant's challenge to juror and permitting him to serve over defendant's objection and challenge, held not presented for review.-Wallace v. State, 149 N. E. 57.

689.

1043 (2) (III.) Court's ruling in admitting in evidence letters written by defendant, to establish standards of comparison, held not preserved for review. People v. Smith, 149 N. E. 3.

1056(1) (Ohio) Judgment not reversed for error in failure to charge to which no exception was taken.-Todor v. State, 149 N. E. 326.

~1063(1) (Ind.) Supreme Court will not decide specifications under motion for new trial made 32 days after finding of guilty.-Martin v. State, 149 N. E. 717.

Showing in effort to explain delay in filing 1120(1) (Ind.) On failure to bring up on motion for new trial held insufficient.-Id. appeal any evidence heard on motion to sup1064 (4) (Ind.) Error in overruling motion press evidence, failure to suppress will not be to suppress evidence and in admitting such evi- | held error.-Chappelle v. State, 149 N. E. 163. 149 N.E.-60

1141(2) (Ind.) All reasonable presumptions indulged in favor of correctness of judgment and rulings of trial court.-Straw State, 149 N. E. 430.

V.

1149 (Ind.) Power to compel prosecuting attorney to elect discretionary, and ruling not disturbed in absence of abuse of discretion.Campbell v. State, 149 N. E. 903.

158(2) (Ind.) Trial court's ruling on motion for change of venue held determination of fact issue and conclusive on appeal.-Scheerer v. State, 149 N. E. 892.

reverse

1159(2) (III.) Duty of court to conviction based on unsatisfactory evidence.People v. Elmore, 149 N. E. 286.

1159(2) (Ind.) Not province of Supreme Court to weigh evidence. -Michopoulos v. State, 149 N. E. 564.

1159(3) (III.) Verdict on conflicting testimony not disturbed unless there is clearly reasonable and well-founded doubt of guilt.-People v. Davis, 149 N. E. 9.

1159 (3) (III.) Conviction on conflicting testimony not reversed unless clearly result of mistake or passion and prejudice.-People v. Mindeman, 149 N. E. 27. 1159(3) (Ind.) Supreme Court will not disturb ruling of trial court on conflict of evidence.-Mahoney v. State, 149 N. E. 444.

1159(4) (Ind.) Assignment of error, based on claim that evidence acted on by jury was perjured, presents no question for decision.— Parker v. State, 149 N. E. 59.

Error must be shown affirmatively by the 1159(4) (Ind.) Whether prosecuting witrecord, and burden is on party complaining of it.-Id.

1141(2) (Ind.) Error must affirmatively appear. Farnsley v. State, 149 N. E. 436.

ness was unworthy of belief in prosecution for assault and battery with intent to commit rape held for jury.-Straw v. State, 149 N. E. 430. 1165(1) (III.) Where guilt is close ques1141(2) (Ind.) Party alleging error must tion, jury must be accurately instructed and present record affirmatively showing fact there-record free from substantial errors.-People v. Mulcahy, 149 N. E. 266. of.-Genett v. State, 149 N. E. 894.

1144(1/2) (Ind.) Rulings of trial court pre-1165(1) (II.) Defendant has right to trial sumed correct unless record affirmatively shows by jury, though there be enough evidence to justify conviction.-People v. Saylor, 149 N. E. error.-Coleman v. State, 149 N. E. 162. 767.

court held

1144(1/2) (Ind.) Ruling deemed correct on appeal in absence of affirmative showing to 1165(1) (III.) Defendant, proved guilty by his own admissions, cannot complain of error. contrary.-Grose v. State, 149 N. E. 722. ~1144(12) (Ind.) Assumed that record where jury does not fix penalty or grade of shows circuit court rule to have been in force crime.-People v. Taylor, 149 N. E. 797. where set out several times in bill of excep-11662 (12) (.) Remark of tions.-Barber v. State, 149 N. E. 896. prejudicial.-People v. Cieslak, 149 N. E. 815. 1144(2) (Ind.) Presumption in favor of 1167(1) (III.) Defendant held not prejurightfulness of proceedings in lower court.- diced by indictment erroneously punctuated, Campbell v. State, 149 N. E. 903. and containing surplus words.-People v. Wood, 149 N. E. 273.

1144(12) (Ind.) Averments in motion to suppress evidence cannot be accepted as estab-1167 (2) (Ind.) No injury from refusal to lishing truth of what is therein stated.-Chap- quash count which was nollied before trial.pelle v. State, 149 N. E. 163. Campbell v. State, 149 N. E. 903.

1144(13) (III.) Absence from record of 1167(3) (Ind.) Judgment will not be reevidence raises presumption of its sufficiency versed because of overruling motion to strike to show all defendants perpetrated crime or out surplusage from pleading unless it apaided in its perpetration.-People v. Bogue, 149 pears appellant was prejudiced thereby.-Martin N. E. 750. v. State, 149 N. E. 717.

Overruling motion to strike out parts of indictment held proper.-Id.

1144(13) (Ind.) Where, on motion to suppress evidence, there was conflicting evidence, the Appellate Court must adopt theory up-1169 (3) (III.) Error, if any, in admission holding finding of court.-Shade v. State, 149 of evidence held harmless.-People v. Taylor, N. E. 348. 149 N. E. 797.

1144(13) (Ind.) Only evidence in support 1170(1) (Ind.) No error in sustaining obof jury's verdict can be considered in determin- jection to question of witness, where it had ing whether it is sustained by sufficient evi-no bearing on innocence of defendant.-Michopdence. Straw v. State, 149 N. E. 430.

1144(13) (Ind.) Verdict of jury given every reasonable inference from evidence.-Michopoulos v. State, 149 N. E. 564.

1144(14) (Ind.) Presumption that court correctly instructed, where not affirmatively shown by bill of exceptions that it contains all instructions given by court to jury.-Straw v. State, 149 N. E. 430.

Trial court presumed to have complied with written request of defendant that instructions be given in writing in view of showing in bill of exceptions.-Id.

1144 (19) (Ind.) Bill of exceptions presumed not to contain all instructions given in absence of affirmative showing to that effect. -Straw v. State, 149 N. E. 430.

1149 (Ind.) Discretion as to withdrawal of plea of guilty not reviewable unless abused.

oulos v. State, 149 N. E. 564.

11702 (2) (Mass.) Affirmative answer of witness as to whether he had seen defendant do anything that district attorney neglected to inquire about held without prejudice.-Commonwealth v. Patalano, 149 N. E. 689.

ques

11702 (3) (Mass.) Exceptions to tions admitted, but not answered, overruled.Commonwealth v. Patalano, 149 N. E. 689.

1171(1) (II.) Improper conduct of attorneys held to require reversal, in view of conflicting evidence.-People v. Saylor, 149 N. E.

767.

1172(1) (Ind.) Charge that defendant was guilty if he sold intoxicating liquor and it was grain alcohol or grain alcohol cut not harmful. Robinson v. State, 149 N. E. SSS. in 1172(6) (Ind.) Reference charge to punishment for conviction of second offense,