Holderman . Thompson, Sheriff.

5. Because it is not stated in the return that the court or judge had power to order the petitioner to be placed in jail in pursuance of the order of the court.

These exceptions were overruled, and the appellant now asks a review of this ruling on appeal.

Concerning habeas corpus proceedings, it is provided, section 1119, R. S. 1881: "No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: * * * "Second. Upon any process issued on any final judgment of a court of competent jurisdiction."

Circuit courts may acquire jurisdiction in the manner provided in bastardy proceedings. It is conceded that under some circumstances an order of commitment may be made in such cases. It follows that unless it affirmatively appears upon the face of the record in the bastardy proceeding, that the Elkhart Circuit Court did not have jurisdiction of the subject-matter, or of the person of the defendant, the order of commitment was not void for want of jurisdiction, and if not thus void, the legality of the judgment or process under which the appellant was committed can not be inquired into in this collateral proceeding.

It is affirmatively shown by both the petition and the return in this record, that the proceedings in the bastardy suit, and the defendant, were regularly before the circuit court at the time the judgment was given. It thus appears that the court had competent jurisdiction under the law to pronounce the very judgment given, and even if it were conceded that it was erroneously given in that particular case, such error could only be corrected on appeal. Smith v. Hess, 91 Ind. 424; Lucas v. Hawkins, 102 Ind. 64; Willis v. Bayles, post, p. 363; Lowery v. Howard, 103 Ind. 440; Church Habeas Corpus, section 267. The order of commitment was, however, not erroneous.

The argument is that because a bond was waived when the

Holderman v. Thompson, Sheriff.

cause was continued from term to term in the circuit court, and the defendant was not in custody, and had not escaped, but appeared at the trial without compulsion, or voluntarily, the court had no power to make the order in question.

The fallacy of the argument lies in disregarding the distinction between actual custody or personal restraint, and constructive or legal custody.

Assuming that all the facts relied on appeared upon the face of the record in the bastardy proceeding, the order of the court was nevertheless correct.

In contemplation of law a defendant in a bastardy proceeding has either not been arrested, has escaped after arrest, is in actual custody, or under bond for his appearance. If under bond, he is in the custody of his bail, and none the less in custodia legis. Turner v. Wilson, 49 Ind. 581; State v. Rowe, 103 Ind. 118.

It is not necessary that he shall be in actual custody of the sheriff in order that a judgment of committal may be rendered against him.

An examination of the statute will disclose that from the inception of the proceeding until the final order of the court is complied with, the law contemplates that the defendant shall be and remain in the custody of an officer or under bail. This is to the end that any judgment which may finally be rendered against him may be secured, and society protected from the burden of maintaining his spurious offspring. "A person arrested by law, and put in the custody of the law, remains in custody, either actually or potentially, until he is discharged according to law." Turner v. Wilson, supra.

That the appellant had been let to bail, and that the taking of a new bond had been waived, whatever effect it may have had upon his bondsmen, did not have the effect to release him from the custody of the law. Under section 989 it became the duty of the clerk, if he was not under bond or in actual custody, to issue a warrant to the sheriff, requiring him to take the defendant into his custody or take a new bond.

Unruh . The State, ex rel. Baum.

That this was not done, however, did not discharge the defendant from legal custody, and that he voluntarily appeared, and was present at the trial without compulsion, neither changed his situation nor affected the jurisdiction of the court over him. Lower v. Wallick, 25 Ind. 68. He was in court subject to its jurisdiction, and in the custody of the law. If he had failed to appear, then, under the ruling in Lucas v. Hawkins, supra, the cause might have proceeded precisely as if he had been present. Whether a judgment could be taken under the provisions of section 986 against one who had not been arrested or otherwise notified of the proceeding, is not involved nor made a question in this case.

That the relatrix agreed to waive a bond and rely on the personal responsibility of the defendant, was of no moment. She could waive nothing which the law required. The proceeding was not for her benefit. The money to be secured was for the support of the illegitimate child. Ex Parte Haase, 50 Ind. 149.

The inability of the appellant to procure replevin bail, and the fact that he was without means to pay the judgment, are equally unavailing. Reynolds v. Lamount, 45 Ind. 308; Ex Parte Teague, 41 Ind. 278.

There is no error in the record. The judgment is affirmed, with costs.

Filed Feb. 20, 1886; petition for a rehearing overruled March 13, 1886.

No. 11,494.

UNRUH V. THE STATE, EX REL. BAUM.

APPEAL.-Failure of Justice to Record Facts.-Dismissal.-If an appeal has been in fact taken from a justice of the peace, his failure to note that fact in the docket is not a sufficient cause for dismissing the appeal. SAME.-Presumption as to Regularity of Appeal.—Supreme Court.-Where the

Unruh v. The State, ex rel. Baum.

transcript filed in the circuit court does not affirmatively show that an appeal was taken from the justice, in the absence of anything to the contrary, it will be presumed in the Supreme Court that the appeal to the circuit court was regularly taken. BASTARDY.-Examination of Relatrix.- Waiver by Defendant.- Where, at the hearing of a bastardy proceeding before a justice of the peace, the relatrix is not present and is not examined, but the defendant does not object to the hearing on that account and makes no effort to procure her attendance, he will be deemed to have waived her examination at that hearing. INSTRUCTIONS TO JURY.-Admissions.-Province of Jury.-The trial court should not declare as matter of law what ought to be left to the jury as a matter of fact, and it is error to embody in an instruction a statement of law, taken from a text-book on evidence, setting forth the cir cumstances under which the admissions of parties would be entitled either to great or little weight.

SAME.- Credibility of Witnesses.—Interest in Suit.-An instruction that the jury should consider the interest of parties and other witnesses and the relationship of witnesses to the parties, in weighing their testimony, is erroneous as invading the province of the jury, and as indicating to them as matter of law that the testimony of such witnesses is entitled to less weight than that of others.

From the Porter Circuit Court.

E. D. Crumpacker, J. H. Gillette, H. A. Gillette and A. D. Bartholomew, for appellant.

A. L. Jones and F. P. Jones, for appellee.

ZOLLARS, J.-The relatrix filed with a justice of the peace a charge of bastardy against appellant, upon which he was arrested. The justice's record shows that on the day set for trial appellant was present in person and by attorney; that the State was represented by its prosecuting attorney; that the relatrix was not present; that the cause was submitted to the court for trial, and that there being no evidence offered in support of the charge made by the relatrix, the court found for the defendant, appellant. On the day following a transcript of the proceedings was filed in the circuit court. In that court appellant moved to dismiss the appeal, and to dismiss the case.

There was no contention or showing that an appeal had

Unruh v. The State, ex rel. Baum.

not been taken. The motion to dismiss the appeal was based upon the sole ground that the transcript of the proceedings in the justice's court does not affirmatively show that an appeal had been taken. If an appeal was in fact taken, the failure of the justice to note that fact in his docket is not a sufficient cause for dismissing the appeal. In the absence of anything to the contrary, we must presume in favor of the jurisdiction of the circuit court, by presuming that the case came into that court by a regular appeal. Wolf v. State, ex rel., 11 Ind. 231; Humble v. Williams, 4 Blackf. 473; Littell v. Bradford, 8 Blackf. 185. See, also, Houk v. Barthold, 73 Ind. 21; Johns v. State, 104 Ind. 557; Brown v. Anderson, 90 Ind. 93; Ohio, etc., R. W. Co. v. Hardy, 64 Ind. 454; Brownfield v. Weicht, 9 Ind. 394.

The ground upon which appellant contends that the case should have been dismissed is, that the relatrix was not examined and her testimony reduced to writing by the justice, as provided by the statute. R. S. 1881, section 984.

It will be observed that on the day set for trial the relatrix was not present. The prosecuting attorney announced himself as ready for trial. Without any objection from appellant, who, with his attorney, was present, and without any effort upon his part to have the relatrix present and to have her testimony taken and reduced to writing, the case was submitted to the court for trial.

The examination of the relatrix provided by the statute is for the benefit and protection of the defendant, and he should not be deprived of it by any ingenious practice by those representing the State. The right to such an examination, however, is a right that the defendant may waive. Smith v. State, ex rel., 67 Ind. 61.

In this case, appellant must be treated as having waived that right. If he desired an examination of the relatrix and her testimony reduced to writing, he might have procured a subpoena, and thus had her brought before the court. He was bound to know that the State could appeal, and that the case