On the proper

ers.

SEC. 41. Where an offence shall be committed ty of joint own upon, or in relation to, the property of several joint owners, the indictment for such offence shall be sufficient if it allege such property to belong to any one or more of such owners, without naming them all.

Crime commit

and consum

SEC. 42. Where a criminal act has been committed ted in one co. in one county, and the crime consummated in another, (as where the mortal blow was given in one county, and the death took place in another) the offender may be indicted in either county.

mated in an

other.

Offence indict

SEC. 43. Whenever by law an offence is indictable able to a par in any particular county, it may be charged in the indictment to have been committed within that county.

ticular co.

Accessaries.

When they

SEC. 44. Accessaries before the fact shall be deemed principals, and may be charged in the indictment with having committed the principal offence. The indictment of such accessary may be found, either in the county where his own crime was perpetrated, or in that where the principal offence was committed.

SEC. 45. Accessaries may be. tried and punished, may be tried. although the principal has not been arrested or tried, and although he may have been pardoned, or otherwise discharged.

Charges and

in an indictment.

SEC. 46. The body of an indictment shall be conspecifications sidered as made up of charges and specifications, and no indictment shall be quashed if an indictable. offence is clearly charged therein, nor shall any motion be entertained with a view to arrest, reverse, or set aside any judgment on account of a defect in the indictment, if the charge, upon which the offender was tried, be so explicitly set forth, that judgment can be rendered thereon.

When mis

SEC. 47. All mistakes or omissions in the comtakes or omis- mencement, or in the formal parts of an indictment, may be amended, on motion of either party, at any time before the rendition of judgment.

sions may be amended.

What need not be stated.

What evidence necessary.

Clerical errors amendable.

SEC. 48. Nothing need be stated in the body of an indictment, which is not required to be proved upon the trial in support of the charge.

SEC. 49. The same evidence, governed by the same rules, shall be necessary to sustain the charges in an indictment, as has heretofore been required, except so far as herein otherwise provided.

SEC. 50. All clerical mistakes, in an indictment, shall be amendable at the discretion of the court.

Amount of bail

SEC. 51. A capias, for the arrest of any person Capias, when indicted, may be issued by the court, returnable it may be reeither forthwith, or at the next term of the court. turnable. In the latter case, the judge shall, in bailable cases, direct the amount in which the defendant shall be held to bail, which shall be endorsed upon the capias. In cases of felonies, this shall not be done in open

court.

to be endorsed.

rected.

SEC. 52. Such capias may be directed to the sheriff To whom capiand constables of any county in the Territory, whose as may be diduty it shall be to arrest the defendant. They may pursue him into any part of the Territory, and, having arrested him, may exercise all power necessary to secure the prisoner, and return him to the proper

county.

cognizance.

SEC. 53. In bailable cases, when the capias is When prisonreturnable to the next term of the court, the prisoner er may be released by enmay at any time be released upon entering into a tering into rerecognizance, with good security, in the amount endorsed upon the capias, conditioned as prescribed in the form appended to this code. The officer making the arrest, the sheriff, or any justice of the peace of the county where the indictment was found, may take such recognizance, and shall file the same To be filed in the office of the clerk of said county, before the in clerk's ofnext ensuing term of the district court to be held fice. therein, and for default in so doing, shall be deemed guilty of a contempt of court.

SEC. 54. The court, where the indictment was Court may take found, shall have power to take the recognizance recognizance. of the prisoner, with sureties for his appearance from day to day, or for his appearance at the next ensu

ing term of said court.

person indict

ed.

SEC. 55. Upon the application of any person, Subpoenas on indicted, the clerk of the court shall, without fee, the part of the issue the necessary subpoenas for his witnesses. SEC. 56. Subpoenas for witnesses, on the trial of any indictable offence, may be served in any part of poenas may be the Territory, by a sheriff or constable of any county served, and by therein.

Where sub

whom.

SEC. 57. Any officer in whose hands a capias or Officer failing subpoena, issued as above prescribed, shall be placed, to make retur who shall fail to make due return to the court from of process. whence such process issued, and any witness who Witness failshall fail to obey such subpoena, shall, unless good ing to obey excuse be rendered, be deemed guilty of a contempt subpœna. of court, and may be fined in any sum, not exceed- Fine. ing two hundred and fifty dollars.

Dilatory pleas.

Defendant's

a commission

SEC. 58. All dilatory pleas to an indictment must be verified by affidavit.

SEC. 59. After an issue in fact is found on an rights touching indictment, the defendant, at the discretion of the court, shall be entitled to the same right of issuing a commission to take testimony out of the Territory, or of taking depositions conditionally, as is provided for parties in civil cases.

for testimony.

Court may di

of venue.

CHAPTER V.

Of the trial, and its incidents.

SEC. 60. All issues of fact, joined upon any indictrect a change ment, shall be tried by a jury of the courts where such was found, provided, however, that the court may, for good cause shown, direct a change of venue to some other county.

Trial, Jury to be

drawn as in civil cases.

Challenge of jurors.

Same right of challenge to

the array, &c., as in civil

cases.

The prisoner

SEC. 61. Such trial shall be had before the jury returned to serve in civil cases. If the defendant, or district attorney, shall require it, the whole number of twenty-four jurors, either of the regular pannel or talesman, shall be present in the jury box, twelve of whom shall then be drawn as in civil cases.

SEC. 62. The defendant, on his trial, if indicted for a capital crime, may challenge peremptorily twelve jurors, and no more; if indicted for any other felony, he shall challenge only six, in the same manner; and if for an offence less than felony, only two. In each case, the district attorney shall have the right to challenge peremptorily one half as many as the defendant is entitled to.

SEC. 63. In all criminal cases, either party shall have the same right of challenge, for cause shown, either to the array, or to individual jurors, as is permitted in civil cases.

SEC. 64. The court shall assign counsel to defend to have coun- the prisoner, in case he cannot procure counsel himself.

sel.

Persons not to

be tried for felony unless personally present.

Accused to

have copy of

SEC. 65. Persons indicted for felony shall not be tried, unless personally present at the trial. For other offences they may be tried, if present either personally, or by attorney duly authorized for that purpose: he must be present when the sentence is pronounced, however, in all cases where imprisonment may form a part of the punishment.

SEC. 66. Any person indicted for a capital crime shall, if he require it, be furnished with a copy of

the indictment, and a list of the jury summoned to indictment, &c. try him, at least twenty-four hours before his trial. if required. SEC. 67. In capital cases the defendant shall be when defendadmitted to bail, unless indicted and tried by the ant to be adend of the term next succeeding his arrest. In cases

mitted to bail. In what cases

of other offences, under like circumstances, he shall to be dischargbe discharged absolutely. Provided that, in any of ed. the above cases, the delay of indictment or trial has Proviso. not been occasioned by defendant himself.

SEC. 68. Where two or more persons are jointly Two or more indicted, and the evidence against one of them is jointly indictinsufficient to put him upon his trial, the court may ed, and eviorder him to be discharged before the evidence shall be deemed closed.

dence against one insuffi

cient.

separate trial

SEC. 69. Where two or more persons are jointly In what case a indicted for a felony, either of them may, at his option, be tried separate. In cases of lesser offences, may be had. defendants jointly indicted shall be tried jointly, or separately, at the discretion of the court.

of the court.

SEC. 70. On the trial of indictments, exceptions Exceptions may be taken by either party to the decision of the may be taken court for the same reasons as in civil actions, but to the decision judgment shall not be stayed, unless the court will give a certificate stating that there is probable cause for taking said exceptions, or so much doubt as to render it expedient to take the opinion of the supreme court thereon: Provided, that where the ex- If taken by disceptions have been taken by the district attorney, no further proceedings shall be had thereon, except in cases where the judgment has been stayed as aforesaid.

trict attorney.

what proceedings to be had.

SEC. 71. If the exceptions have been taken on the If on the part part of a defendant, he shall remain in custody in of defendant, the mean time, unless he will enter into recognizance, with sufficient surety, before the court, or the judge in vacation, conditioned that he will appear before said court at such time as the supreme court shall direct, or that he will obey any order the said supreme court shall make in the premises, which recognizance shall be filed with the clerk of the district court.

SEC. 72. If the exceptions are taken by the district When defendattorney, the same proceedings shall be had, only ant need not the defendant need not find sureties in his recogni- find sureties.

zance.

SEC. 73. When judgment shall have been stayed Writ of certiupon an indictment as above provided, the district orari.

Clerk to make

attorney shall forthwith sue out a writ of certiorari, returnable to the supreme court.

SEC. 74. The clerk of the court where the cause return thereto. was tried, upon being served with such writ, shall forthwith make returns thereto, containing a transcript of said indictment, bill of exceptions, and certificate staying the judgment.

Power of supreme court.

Writ of error.

In what cases not permitted.

In other cases to issue as a matter of course.

Applications

for the writ.

Clerk to make

SEC. 75. The supreme court shall have power to direct a new trial, discharge the defendant, pass sentence, or remit the proceedings to the district court, with directions to proceed and render judgment.

SEC. 76. After judgment rendered on an indictment, except as provided in the last section, a writ of error may be brought thereon by the defendant. In capital cases this shall not be permitted, except upon the allowance of a judge of the supreme court, and after sufficient notice to the prosecuting attorney of the time and place of making the application.

SEC. 77. In all other than capital cases, writs of error shall issue as a matter of course, upon a mere application to the clerk of the supreme court, in term or vacation, but the writ shall not operate as a stay of proceedings, unless allowed in the manner provided in the preceding section.

SEC. 78. Applications for such allowance shall, in all cases, be formed upon a transcript of the indictment and bill of exceptions, or other record upon which error is alleged, under the seal of the court where the indictment was tried.

SEC. 79. Upon filing the writ of error and the allowreturns thereto. ance of the judge (if such allowance has been made) with the clerk of the court where the indictment was tried, he shall forthwith make returns thereto, containing a like transcript as is required in the last preceding section.

Stay of proceedings.

Defendant ad

SEC. 80. If a stay of proceedings be allowed, the sheriff, upon being served with the district clerk's certificate thereof, shall cease all further proceedings in execution of the sentence, but shall retain the defendant in custody, and at his request take him before one of the judges of the supreme court for the purpose of giving bail.

SEC. 81. Such judge may admit the defendant to mitted to bail. bail by recognizance, with sufficient surety, conditioned and filed as above provided in cases of certiorari.

If judgment affirmed.

SEC. 82. If the judgment below be affirmed, the sentence there pronounced shall be executed ac