#### Julius Born, Plaintiff in Error, v. Theodore Schrieber, Defendant in Error.

(Not to be reported in full.)

Abstract of the Decision.

1. Appeal Aim error, § 1410 * —when verdict not disturbed because of insufficiency of evidence. A verdict will not he disturbed on appeal as not supported by the evidence unless it is against the manifest weight of evidence.

Error to the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1915.

Affirmed.

Opinion filed April 17, 1916.

Statement of the Case.

Action in trespass, by Julius Born, plaintiff; against Theodore Schreiber, defendant, for an assault and battery committed by defendant upon plaintiff. From a judgment for plaintiff, defendant brings error.

Simpson & Adami and J. F. Sanford, for plaintiff in error.

Ralph E. 'Sprigg, for defendant in error.

*

See Illinois Notes Digest,. Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Boggs

delivered the opinion of the court.

*1022. Appeal and error, § 1414 * —when question whether witness sworn not reviewed. The question whether or not a witness has been sworn is so peculiarly within the observation of the trial judge that his rulings thereon will not be disturbed on appeal:

3. New Trial, § 5*-—when not granted for neglect to cause witness to take oath. A new trial will not be granted upon the ground that a witness was not sworn when his testimony did not relate to any vital issue in the case.

4. Instructions, § 154*—when modification proper. The modification of instructions is not objectionable where such modification is more in matter of form and the meaning of such instructions remains substantially as before such modification.

5. Instructions, § 126*—when abstract instructions properly refused. It is not error to refuse instructions which are abstract in character.

6. Instructions, § 151*—when requested instruction covered by other instructions properly refused. A requested instruction covered in the main charge is properly refused.

7. Instructions, § 120*—when requested instruction inapplicable to evidence properly refused. A requested instruction correct in form, but inapplicable to the evidence in the case, is properly refused.

8. Instructions, § 19*—when argumentative instruction properly refused. A requested instruction which is argumentative in form and relates to matters foreign to the issues is properly refused.