Where objectionable remarks are made by counsel in the presence of the jury, a juror may be withdrawn and the cause continued; Benson v. R. Co., 228 Pa. 290, 77 Atl. 492; and where irrelvant or improper remarks are made before the jury by a witness a juror should be withdrawn ; Surface v. Bentz, 228 Pa. 610, 77 Atl. 922, 21 Ann. Cas. 215, where the court said that "it is quite as necessary to protect a party against the improper re marks to a jury made by, a witness as * * * by counsel. The misconduct of a bystander, in open court, during the progress of a criminal trial, having been suitably dealt with by the judge, furnishes no ground for the discharge of the jury, unless it is of such a nature as to have necessarily influ enced the verdict; State v. Wimby, 119 La. 139, 43 South. 984, 12 L. R. A. (N. S.) 98, and note, 12 Am. St. Rep. 507, 12 Ann. Cas. 643 ; Bowles v. Corn., 103 Va. 816, 48 S. B. 527 ; State v. Gartrell, 171 Mo. 489, 71 S. W. 1045.
Right of Jury to Hear Shorthand Notes. In some cases it is held that the jury may have the stenographer's notes of ' evidence read to them as a matter of right ; Roberts v. R. Co., 104 Ga. 805, 30 S. E. 966 ; State v. Perkins, 143 Ia. 55, 120 N. W. 62, 21 L. R. A. (N. S.) 931, 20 Ann. Cas. 1217 ; contra, State v. Manning, 75 Vt. 185, 54 Atl. 181 ; it is within the discretion of the court; id; Peo ple v. Shuler, 136 Mich. 161, 98 N. W. 986.
Different Indictments in One Trial. A de fendant may he tried before the same jury on different indictments charging separate offences of a kindred nature ; Lucas v. State, 144 Ala. 63, 39 South. 821, 3 L. R. A. (N. S.) 412 ; State v. McNeill, 93 N. C. 552 ; but it was held otherwise in McClellan v. State, 32 Ark. 609, and Com. v. Bickum, 153 Mass. 386, 26 N. E. 1003. In some cases such consolida tion is authorized by statute either of the state; Chesnut v. People, 21 Colo. 512, 42 Pac. 656; though such statute is said to be merely an embodiment of an established corn mon law rule ; Cummins v. People, 4 Colo. App. 71, 34 Pac. 734; or of the United States ; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; Williams v. U. S., 168 U. S. 382, 18 Sup. Ct. 92, 42 L. Ed. 509 ; this ap plies where two persons are jointly charged in each indictment ; Turner v. U. S., 66 Fed. 280, 13 C. C. A. 436, 30 U. S. App. 90 ; but this statute does not authorize the consolida tion of separate indictments against different persons, though for a joint offense; U. S. v. Durkee, Fed. Cas. No. 15,008; or indictments against persons for the same crime committed against the property of different persons at different times ; Mac Elroy v. U. S., 164 U.
S. 76, 17 Sup. Ct. 31, 41 L. Ed. 355.
Effect of Pleading Guilty on an Appeal. Although the defendant pleads guilty to an indictment which charged no criminal of fence, advantage may be taken of it upon writ of error or appeal; Klawanski v. People, 218 Ill. 481, 75 N. E. 1028 ; Henderson v. State, 60 Ind. 296, and other cases in which the question whether the indictment was suf ficient was considered for the first time on appeal ; O'Brien v. State, 63 Ind. 242 ; Hays v. State, 77 Ind. 450; if the defect in the in dictment is fatal it may be raised on appeal for the first time; Pattee v. State, 109 Ind. 545, 10 N. E. 421; Cancemi v. People, 18 N. Y. 128 ; but if it is formal, and may be cured by amendment, it is otherwise; People v. Kelly, 99 Mich. 82, 57 N. W. 1090; King v. State, 3 Tex. App. 7 ; a failure to demur to an indict ment does not waive the objection ; People v. Nelson, 58 Cal. •104.
Presumption of Harm. There is a pre sumption of harm caused by errors in admit ting or excluding evidence in a jury trial, and the judgment should be reversed unless ab sence of harm clearly appears by the record ; Crawford v. U. 212 U. S. 183, 29 Sup. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392. Crime committed in two districts may be tried where it originated.
Where a conspiracy is charged as entered into in one district, the court thereof has jurisdiction of the offence, although the overt acts were committed in another ju risdiction ; Hyde v. Shine, 199 U. S. 62, 25 Sup. Ct. 760, 50 L. Ed. 90, where the court said: "We do not wish to be under stood as approving the practice of indicting citizens of distant states in the courts of this district, where an indictment will lie in the state of the domicil of such person, unless in exceptional cases, where the circumstances seem to demand that this course shall be taken." See VENUE.
It is within the discretion of the trial court to allow the introduction of evidence out of the usual order, and in the absence of gross abuse its exercise of this discretion is not re viewable; Goldsby v. U. S., 160 U. S. 70, 16 Sup. Ct. 216, 40 L. Ed. 343. It is also dis cretionary with the court to admit evidence to prove a point after the testimony is clos ed ; Union P. It. Co. v. R. Co., 51 Fed. 309, 2 C. C. A. 174, 10 U. S. App. 98 ; and to refuse to allow the examination of witnesses for the purpose of elaborating previous testimony ; Sutherland v. Round, 57 Fed. 467, 6 C. C. A. 428, 16 U. S. App. 30.