Woods, J.
The appellants were convicted upon an indictment for petit larceny, and sentenced to the State prison,. Michaels for one year, and Morrison for two years. They have assigned error upon the overruling of their motion for a new trial. Of the alleged causes for the motion, the following only have been discussed by their counsel:
1st. The verdict is contrary to the law and the evidence.
2d. The verdict is not sustained by the evidence.
3d. The court en-ed in admitting evidence concerning the general moral character of the defendant Moi’rison.
4th. Error of law occurring at the trial, and misconduct of the attorney for the State, in making certain specified remarks in the closing argument, whereby the defendants were prevented from having a fair trial.
The trial was had under the criminal code of 1881, which has the following provisions :
“Sec. 225. The following persons are competent witnesses :
“First, All persons who are competent to testify in civil actions. * * *
“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.
[337]*337“Sec. 230. In'all questions affecting the credibility of a witness, his general moral character may be given in evidence.” Acts 1881, pp. 157, 158.
The appellant Morrison availed himself of the privilege of testifying, and thereby made it competent for the State, under the section last quoted, to offer evidence concerning his general moral character. While the general proposition is true, as counsel claim, that the moral character of the accused, in a criminal case, is not in issue, unless he chooses to bring it into question by first offering evidence in support of it (Fletcher v. The State, 49 Ind. 124, Knight v. The State, 70 Ind. 375), it has now become the rule, that, if he avails himself of the privilege of testifying, he testifies under the same rules, and may be impeached in the same manner, as other witnesses. Mershon v. The State, 51 Ind. 14; The State v. Beal, 68 Ind. 345.
This disposes of the third cause stated in the motion for a new trial, and of the principal point of the argument made upon the fourth cause.
There having been evidence concerning the moral character of the defendant Morrison, legally admitted, it was entirely proper for the State’s attorney to comment upon it, and to claim that it showed the defendant to be a bad man. It may have been unreasonable and illogical, and in that sense unlawful, for him to argue that bad character was evidence or proof of guilt; but it is not cause for a new trial that counsel in a case make an illogical argument, or a misstatement of the law. It is objected, however, in this connection, that speaking in the plural, and of both defendants, the attorney of the State said they were bad men, their moral characters are bad, etc., while the proof on the subject was confined to the character of Morrison alone. This point is not developed in the original brief of appellants, but is first distinctly made in the reply to the brief filed for the appellee. The record fails to show an objection in the court [338]*338below on this ground. Before the counsel for the appellants interrupted the argument and stated their grounds of objection, the attorney for the State had spoken only of the character of Morrison ; but after the court had properly overruled the objection, and directed the argument to proceed, the attorney did then, among many other things set forth in the bill of exceptions, say the defendants were bad men, their moral characters were bad ; that the jury had a right to consider this as proof of their guilt, etc. In this part of the speech Morrison alone was mentioned by name, and Michaels alluded to, not by name, but only by the use of the word defendants and the plural pronouns. After its close, the appellants objected generally to this speech, but stated no specific ground of objection to the whole or any part of it. It is not at all probable that the mind of the jury was diverted from the evidence, or biased against either of the appellants, on account of this part of the argument. If it struck the mind of appellants’ counsel as unjust and harmful to their clients, they should, upon the conclusion of the speech, or the objectionable portion of it, have specifically pointed out the ground of exception, namely, that there had been no proof concerning Michaels’ character, so that the proper retraction or correction could have been made. The language complained of was not an irremediable wrong, such as would have been a reference by the attorney to the fact that one of the defendants had not testified. Such an allusion is expressly forbidden by statute, and the wrong can not, it has been held, be cured by an instruction to the jury to disregard it. Long v. The State, 56 Ind. 182; Knight v. The State, 70 Ind. 375. But not every trangression of counsel beyond the bounds of strictly proper discussion can be deemed a fatal and incurable error ; and, whatever its character, it can not be made available unless pointed out to the lower court, and the ground of objection specifically stated ; and the fact that the court may have requested or commanded [339]*339counsel not again to interrupt the argument is no excuse for. their failure to comply with this rule of practice.
In this connection, it may be noted that the appellants have endeavored to make a point upon the fact that the court refused them the right to reply to a part of the closing argument made in behalf of the State, claiming that new points, not suggested in the opening argument, had been advanced. 'The record, however, does not show that all the points of the closing argument were not presented in the opening speech; and, if the fact were shown, it would not be available, because not stated among the causes for a new trial.
The next inquiry is, whether the court erred in refusing to give the sixth instruction asked by the appellants. It is as follows :
“6th. The law presumes the defendants innocent until the contrary is proved. This presumption is expressly given by the statute. It is the most favored and powerful legal presumption in the criminal law, and overrides all other counter legal presumptions ; that is, you can not convict the ■defendants upon the proof of any circumstances or facts which only raise a presumption of their guilt, from the fact that any presumption of their guilt which may be inferred from circumstances proved, or attempted to be proved, is inferior to the presumption of innocence which the law gives in favor of the defendants. So the evidence must be sufficient to convince each of your minds of the fact of the guilt of the defendants beyond a reasonable doubt, exclusive of any mere presumption of guilt which may be raised by proof of circumstances.”
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Woods, J.
The appellants were convicted upon an indictment for petit larceny, and sentenced to the State prison,. Michaels for one year, and Morrison for two years. They have assigned error upon the overruling of their motion for a new trial. Of the alleged causes for the motion, the following only have been discussed by their counsel:
1st. The verdict is contrary to the law and the evidence.
2d. The verdict is not sustained by the evidence.
3d. The court en-ed in admitting evidence concerning the general moral character of the defendant Moi’rison.
4th. Error of law occurring at the trial, and misconduct of the attorney for the State, in making certain specified remarks in the closing argument, whereby the defendants were prevented from having a fair trial.
The trial was had under the criminal code of 1881, which has the following provisions :
“Sec. 225. The following persons are competent witnesses :
“First, All persons who are competent to testify in civil actions. * * *
“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.
[337]*337“Sec. 230. In'all questions affecting the credibility of a witness, his general moral character may be given in evidence.” Acts 1881, pp. 157, 158.
The appellant Morrison availed himself of the privilege of testifying, and thereby made it competent for the State, under the section last quoted, to offer evidence concerning his general moral character. While the general proposition is true, as counsel claim, that the moral character of the accused, in a criminal case, is not in issue, unless he chooses to bring it into question by first offering evidence in support of it (Fletcher v. The State, 49 Ind. 124, Knight v. The State, 70 Ind. 375), it has now become the rule, that, if he avails himself of the privilege of testifying, he testifies under the same rules, and may be impeached in the same manner, as other witnesses. Mershon v. The State, 51 Ind. 14; The State v. Beal, 68 Ind. 345.
This disposes of the third cause stated in the motion for a new trial, and of the principal point of the argument made upon the fourth cause.
There having been evidence concerning the moral character of the defendant Morrison, legally admitted, it was entirely proper for the State’s attorney to comment upon it, and to claim that it showed the defendant to be a bad man. It may have been unreasonable and illogical, and in that sense unlawful, for him to argue that bad character was evidence or proof of guilt; but it is not cause for a new trial that counsel in a case make an illogical argument, or a misstatement of the law. It is objected, however, in this connection, that speaking in the plural, and of both defendants, the attorney of the State said they were bad men, their moral characters are bad, etc., while the proof on the subject was confined to the character of Morrison alone. This point is not developed in the original brief of appellants, but is first distinctly made in the reply to the brief filed for the appellee. The record fails to show an objection in the court [338]*338below on this ground. Before the counsel for the appellants interrupted the argument and stated their grounds of objection, the attorney for the State had spoken only of the character of Morrison ; but after the court had properly overruled the objection, and directed the argument to proceed, the attorney did then, among many other things set forth in the bill of exceptions, say the defendants were bad men, their moral characters were bad ; that the jury had a right to consider this as proof of their guilt, etc. In this part of the speech Morrison alone was mentioned by name, and Michaels alluded to, not by name, but only by the use of the word defendants and the plural pronouns. After its close, the appellants objected generally to this speech, but stated no specific ground of objection to the whole or any part of it. It is not at all probable that the mind of the jury was diverted from the evidence, or biased against either of the appellants, on account of this part of the argument. If it struck the mind of appellants’ counsel as unjust and harmful to their clients, they should, upon the conclusion of the speech, or the objectionable portion of it, have specifically pointed out the ground of exception, namely, that there had been no proof concerning Michaels’ character, so that the proper retraction or correction could have been made. The language complained of was not an irremediable wrong, such as would have been a reference by the attorney to the fact that one of the defendants had not testified. Such an allusion is expressly forbidden by statute, and the wrong can not, it has been held, be cured by an instruction to the jury to disregard it. Long v. The State, 56 Ind. 182; Knight v. The State, 70 Ind. 375. But not every trangression of counsel beyond the bounds of strictly proper discussion can be deemed a fatal and incurable error ; and, whatever its character, it can not be made available unless pointed out to the lower court, and the ground of objection specifically stated ; and the fact that the court may have requested or commanded [339]*339counsel not again to interrupt the argument is no excuse for. their failure to comply with this rule of practice.
In this connection, it may be noted that the appellants have endeavored to make a point upon the fact that the court refused them the right to reply to a part of the closing argument made in behalf of the State, claiming that new points, not suggested in the opening argument, had been advanced. 'The record, however, does not show that all the points of the closing argument were not presented in the opening speech; and, if the fact were shown, it would not be available, because not stated among the causes for a new trial.
The next inquiry is, whether the court erred in refusing to give the sixth instruction asked by the appellants. It is as follows :
“6th. The law presumes the defendants innocent until the contrary is proved. This presumption is expressly given by the statute. It is the most favored and powerful legal presumption in the criminal law, and overrides all other counter legal presumptions ; that is, you can not convict the ■defendants upon the proof of any circumstances or facts which only raise a presumption of their guilt, from the fact that any presumption of their guilt which may be inferred from circumstances proved, or attempted to be proved, is inferior to the presumption of innocence which the law gives in favor of the defendants. So the evidence must be sufficient to convince each of your minds of the fact of the guilt of the defendants beyond a reasonable doubt, exclusive of any mere presumption of guilt which may be raised by proof of circumstances.”
Passing so much of the instruction as attempts a comparison of legal presumptions, which the court may well have refused as theoretical and impractical, we do not assent to the proposition, that any presumption of guilt which may be inferred from circumstances proved is inferior to the legal presumption of innocence ; or to the equivalent proposition, that the [340]*340evidence must be sufficient to convince each juror of the guilt of the defendants, beyond a reasonable doubt, exclusive of any mere presumption of guilt which may be raised by proof of circumstances. If this' be the law, there can be no conviction upon circumstantial evidence, if indeed upon any hind of human testimony. In a strict sense, guilt is seldom,, if ever, directly proved, because it rarely consists solely in the act done, but is in part made up of the motive or intent with which it was done, and therefore must be inferred from the facts proven, or supposed to be proven; and, if a conviction is to be had at all, it must be because the presumption, or, to speak more properly, the inference drawn from facts and circumstances may be made superior to the presumption of innocence. The court did plainly instruct in. reference to the presumption of innocence, and that, in order to convict, the evidence must establish every material element of the charge beyond reasonable doubt, and to the. exclusion of every reasonable hypothesis of innocence.
The evidence in the case we have examined carefully. The criticisms made upon it do not impair or reach the more important and convincing parts, which seem sufficiently to wari’ant the conclusion which the jury adopted. The judge-who presided at the trial, and saw and heard the witnesses, was satisfied with the verdict, and we find in the record no-sufficient cause for setting aside his decision.
Judgment affirmed, with costs.