On Petition fob. a Rehearing.
Coffey, J.In considering the petition for a rehearing in this case we deem it unnecessary to say anything in addition to what has already been said except what it may be necess'ary to say in relation to the petitioner’s objection that the instructions of the trial court to the jury are not properly in the record.
Under the practice in this State there are three modes by which instructions may be made part of the record ■of a cause, viz:
First. By order of the court.
Second. By special exceptions written upon the margin, or following each instruction and signed by the judge.
Third. By a general bill of exceptions. Ohio, etc., R. W. Co. v. Dunn, 138 Ind. 18.
*306In this case the words “given and excepted to by defendant, February 20, 1891,” were written after each instruction given by the court on its own motion, after which follows the signature of the judge trying the cause. All of these instructions, as well as all other instructions given and refused, are embraced in a proper bill of exceptions which was regularly filed as shown by the record entry.
This, we think, was sufficient to bring the instructions, together with the exceptions indorsed thereon, into the record. The filing of the bill of exceptions containing these instructions and exceptions was a substantial compliance with the statute requiring the instructions to be filed where the exceptions are taken in the manner above indicated. We have not deemed it necessary to inquire whether the evidence is properly brought into the record, for the reason that instruction twenty-eight, given by the court to the jury, is erroneous under any supposable state of the evidence. By it the court assumes to tell the jury what presumptions of fact they are required to draw from the existence of other given facts.
This was, we think, clearly an assumption by the court of the functions of the jury, and was, for that reason, erroneous under any state of facts that might have been proven under the issues in the case.
The petition for a rehearing is overruled.
Filed June 7, 1894.