of the reasons why he should be convicted. It is true, that when stopped by the court, he said it was inadvertently done, and the jury were directed by the court to disregard it, who can know what effect it may have had on the jury in forming their verdict? Such comments are prohibited by the statute, and it is strange that any attorney should so far forget the rights of the accused, and his professional duty, for a moment, even in the heat of discussion; but he said it was inadvertent, and we are loth to believe that any attorney would intentionally act so unfairly and unprofessionally. We cannot conceive that any member of the bar could deliberately seek by such means to wrongfully procure a conviction and the execution of a fellow being, when his highest professional duty to his client only requires him to see that there is a fair trial according to the law and the evidence. Where such things are done, whether intentionally or inadvertently, it may make an impression on the minds of the jury that nothing can remove. And who can say that this inadvertence may not have produced the verdict of guilty?" Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132.

Improper language of prosecuting attorneys has frequently been made the basis of severe animadversion by the Missouri courts. State v. Mahly, 68 Mo. 316; State v. Lee, 66 Mo. 165; State v. Reed, 71 Mo. 200; State v. Martin, 74 Mo. 547. See also Cross v. State, 68 Ala. 476; Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582; State v. Jackson, 95 Mo. 623.

§ 181. Failure to Object to the Admission of Improper Evidence no Ground For.-Where evidence that is objectionable is permitted to go to the jury without objection, and it is such as will prove a fact, a verdict founded on it will be sustained. This is in harmony with the general rule substantially thus stated by some of the authorities: "A party objecting to a variance between the pleadings and the proof must make his objection at the proper time during the trial, and, if he does not, he cannot afterward avail himself of the objection." Belknap v. Sealey, 14 N. Y. 143, 67 Am. Dec. 120; Manice v. Brady, 15 Abb. Pr. 173; Shall v. Lathrop, 3 Hill, 237; Pike v. Evans, 15 Johns. 213; Doyle v. Mulren, 7 Abb. Pr. N. S. 258. In Roberts v. Graham, 73 U. S. 6 Wall. 578, 18 L. ed. 791, the Supreme Court of the United States said: "The objection of a variance not taken at the trial, cannot avail the defendant as an error in the

higher court, if it could have been obviated in the court below; nor can it avail him on a motion for a new trial." This general doctrine was applied in a criminal case in Cross v. People, 47 Ill. 152, 95 Am. Dec. 474. It has often been held that a verdict will be sustained on evidence which would have been excluded had proper objection been made. Stockwell v. State, 101 Ind. 1; Riehl v. Evansville Foundry Asso. 104 Ind. 70; Yeager v. Wright, 112 Ind. 230; McFadden v. Fritz, 110 Ind. 5; Indiana, B. & W. R. Co. v. Finnell, 116 Ind. 414.

Without intimating that the decisions last cited are not declaratory of the law, is it not obvious that at least in the trial of a capital case, a conviction based upon illegal evidence should be set aside?

"If the evidence, although not strictly admissible, is not of a character to damage the defendant, or, as it has been otherwise expressed, if the court can clearly see that the error has not influenced the result, it is no ground for a new trial." Draper v. State, 4 Baxt. 254; Wilson v. Smith, 5 Yerg. 381; Clark v. Rhodes, 2 Heisk. 206; Maddin v. Head, 1 Lea, 664; McAdams v. State, 8 Lea, 463.

"And ordinarily, when a prisoner's guilt is made out clearly by positive testimony, it should be no ground for a new trial that evidence was introduced which was not strictly admissible, if the court can see that the defendant was not prejudiced thereby." McAdams v. State, supra; Turner v. State, 89 Tenn. 547.

§ 182. Doctrine of Invited Error Considered. If the party opens the door to the admission of incompetent evidence he is in no plight to complain that his adversary followed through the door thus opened. Perkins v. Hayward, 124 Ind. 445. See similar rulings of the same court in the cases of Lowe v. Ryan, 94 Ind. 450; Meranda v. Spurlin, 100 Ind. 380; Hinton v. Whittaker, 101 Ind. 344; Dinwiddie v. State, 103 Ind. 101; Hobbs v. Tippecanoe County Comrs. 116 Ind. 376; Nitche v. Earle, 117 Ind. 270; Mosier v. Stoll, 119 Ind. 244.

Judge Elliott in Dinwiddie v. State, supra, says of the question involved in that case: "As the question comes to us we can not say that the appellants did not, on cross-examination, introduce evidence of the same character as that which they now seek to make available for a reversal of this judgment. Nor can we presume that there was nothing done making the evidence com

petent without a departure from settled and familiar principles. It is, and long has been, a settled rule that all reasonable intendments will be indulged in favor of the ruling of the trial court. So, too, it is well settled that a party who seeks to overthrow the judgment of a court must affirmatively show an erroneous ruling and that it was prejudicial to him. It is evident that, under these settled rules, the appellants cannot successfully demand a reversal of the judgment upon the ground that there was error in admitting the testimony to which we have referred, for it does not affirmatively appear that there was error of which they can take advantage, nor is the presumption which we are bound to yield to the rulings of the trial court overthrown. We do not decide whether the evidence was or was not per se incompetent; we decide that the record does not show that the appellants are in a situation to successfully make any question upon its intrinsic character."

It is an error of law to find a material fact when there is a total absence of evidence to sustain it, and that error of law is reviewable in the appellate court upon due and proper exceptions. Murray v. Harway, 56 N. Y. 337; Duffy v. Masterson, 44 N. Y. 557; Mason v. Lord, 40 N. Y. 477; Pollock v. Pollock, 71 N. Y. 137.

§ 183. Technical Errors Disregarded in Motion for.-In Ritzman v. People, 110 Ill. 363, the court says:

"If it is not already understood, it is high time it should be, that where a case is clearly made out against the accused, and the jury have so found, this court will not reverse for a mere technical error, which it can see could not have affected the result."

Taylor, in the recent edition of his work on the law of evidence, in speaking of the scope and meaning of substantial justice, says that

"Even judges are beginning to discover that substantial justice is of more real importance than mere technical precision. Wise men should ever bear in mind that the objects of the acts which authorize amendments in criminal proceedings is to render punishment more certain by neutralizing the effect of trivial variances, which have constantly protected the wrong-doer.

"So long as the least rational doubt exists respecting the guilt of a prisoner, it is only fair that the ample shield of justice should screen him from injury; that jurors should weigh with jealousy the evidence against him, and judges should see more clearly that

the act with which he is charged is an offense against the law. But when courts of justice go further than this and permit the law to be defeated by technical errors, which cannot by possibility mislead a defendant, and which have nothing to do with the substantial merits of the case, they take the most effectual means of rendering the administration of the criminal law a fitting subject for contempt and ridicule. In civil causes, the rules authorizing amendments receive a liberal construction, and properly so. Why, then, should an absurdly strict construction be applied in criminal courts? The statutes themselves warrant no such distinction, and to introduce into the interpretation of them the old doctrine, strictissimi juris, is to misunderstand and misapply the meaning of that doctrine and to make the commandments of the legislature of more effect through your traditions." The foregoing reasoning may be relied upon to support the rule now well understood that no new trial can be granted for newly discovered evidence which merely tends to discredit a witness. Hunt v. State, 81 Ga. 140.

In Cooley, Const. Lim. (5th ed.) 504, 505, it is laid down: "It is a general rule that irregularities in the course of judicial proceedings do not render them void. An irregularity may be defined as the failure to observe that particular course of proceeding which, conformably with the practice of the court, ought to have been observed in the case." Kelly v. People, 115 Ill. 583.

The tendency of modern legislation, as well as judicial decision, is to do away, as far as possible, with the subtle and refined distinctions of the common law, when they interfere with substantial justice. Hutchinson v. Com. 82 Pa. 472. And what makes this proposition so peculiarly offensive to the criminal classes is the impossibility of refuting it.

§ 184. Misconduct of Jury as Ground for.-A defendant in a criminal case is not entitled to a new trial merely because there is evidence showing the misconduct of a juror, unless it be shown that such misconduct was prejudicial to the rights of the defendant, or such a state of facts is shown from which it may fairly be presumed that the defendant's rights were prejudiced. Henning v. State, 106 Ind. 386, 55 Am. Rep. 756; Mergentheim v. State, 107 Ind. 567; Riley v. State, 95 Ind. 446; Cooper v. State, 120 Ind. 377; Drew v. State, 124 Ind. 9.

The same conclusion was reached in People v. Menken, 36 Hun,

91, 3 N. Y. Crim. Rep. 233, where it was held that a verdict of a jury in a criminal case will not be set aside for irregularity or improper conduct upon the part of jurors, unless it be shown that the defendant was prejudiced thereby.

Where subsequent to the verdict the alienage of one of the jurors is shown, while that fact would have been a just ground for challenge, it is no reason for avoiding the verdict and granting a new trial; nor where a juror has been shown to have expressed a disqualifying opinion as to the subject-matter of the trial; or where he was not a citizen of the county or state, or is shown to have been related to the accused within the prohibited degrees. Brown v. La Crosse, C. G. L. & C. Co. 21 Wis. 51; State v. Shelledy, 8 Iowa, 477; Hollingsworth v. Duane, 4 U. S. 4 Dall. 353, 1 L. ed. 864; State v. Quarrel, 2 Bay, 150, 1 Am. Dec. 637; State v. Howard, 17 N. H. 171; Simpson v. Pitman, 13 Ohio, 365; Presbury V. Com. 9 Dana, 203; Keener v. State, 18 Ga. 194, 63 Am. Dec. 269; Jones v. People, 2 Colo. 351; Chase v. People, 40 Ill. 352; Mt. Desert v. Cranberry Isles, 46 Me. 411; Hull v. Albro, 2 Disney, 147; Romaine v. State, 7 Ind. 67; Thompson v. Page, 16 Cal. 78; Roseborough v. State, 43 Tex. 570; Costly v. State, 19 Ga. 614; Kennedy v. Com. 14 Bush, 340; McLellan v. Crofton, 6 Me. 307; Orme v. Pratt, 4 Cranch, C. C. 124; Taylor v. Gree ly, 3 Me. 204; Baker v. State, 4 Tex. App. 227; Smith v. Earle, 118 Mass. 531.

Where the attorney for the accused fails to inquire as to the alienage and competency of a juror at the time the trial jurors are being selected, such failure will be construed as a waiver of the defendant's right to challenge. Jeffries v. Randall, 14 Mass. 205; State v. Funck, 17 Iowa, 365; Estep v. Wattrous, 45 Ind. 140; State v. Shelledy, supra; Alexander v. Dunn, 5 Ind. 122; Keener v. State, and Chase v. People, supra; State v. Patrick, 3 Jones, L. 443; Collier v. State, 20 Ark. 36; Croy v. State, 32 Ind. 384; Wilder v. State, 25 Ohio St. 555; Tweedy v. Briggs, 31 Tex. 74; Beck v. State, 20 Ohio St. 228; State v. Parks, 21 La. Ann.

251.

It is erroneous to allow the jury, after retiring to consider of their verdict, to have access to law books of any description. They must get their instructions as to the law of the case from the court, and not from their own perusal of the books. Johnson v. State, 27 Fla. 245.