be given you in charge or otherwise come to your knowledge, touching the present service. The counsel of the state, your own, and your fellows', you shall keep secret, unless called on in a court of justice to make disclosures. You shall present no person through malice, hatred, or ill-will, nor shall you leave any person unpresented, through fear, favor, or affection, or for any reward or hope thereof; but in all your presentments you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding."

SEC. 396. [Oath of others.]-Thereupon the following oath or affirmation shall be administered to the other grand jurors:

"The same oath which A. B., your foreman, hath now taken before you on his part, you, and each of you, shall well and truly observe and keep, on your respective parts.'

SEC. 397. [Charge.]-The grand jury, after being sworn, shall be charged as to their duty by the judge, who shall call their attention particularly to the obligation of secresy which their oaths impose, and to such offenses as he is by law required to specially charge.

SEC. 398. [To retire.]-After the charge of the court, the grand jury shall retire with the officer appointed to attend to them, and shall proceed to inquire of and present all offenses whatever, committed within the limits of the county in and for which they were impaneled and sworn or affirmed.

SEC. 399. Prosecuting attorney to attend grand jury.]—The prosecuting attorney or the assistant prosecuting attorney shall be allowed at all times to appear before the grand jury, for the purpose of giving information relative to any matter cognizable by them, or giving them advice upon any legal matter they may require, and he may interrogate witnesses before them when they or he shall deem it necessary; but no other person shall be permitted to remain in the room with said jury while they are expressing their views or giving their votes on any matter before them.

SEC. 400. [Subpoena witnesses.]-Whenever required by the grand jury, or the prosecuting attorney, the clerk of the court in which such jury is impaneled shall issue subpoenas and other process to bring witnesses to testify before such grand jury.

SEC. 401. [Witness-Oath.]-Before any witness shall be examined by the grand jury, an oath or affirmation shall be administered to him, truly to testify of such matters and things as may be lawfully inquired of him before said jury. which oath or affirmation may be administered either by the foreman of said jury or by the clerk of the proper court. [Amended 1875, 17.]

SEC. 402. [Witness refusing to answer.]-If any witness appearing before a grand jury shall refuse to answer any interrogatories during the course of his examination, the fact shall be communicated to the court in writing, in which the question refused to be answered shall be stated, together with the excuse for the refusal, if any be given by the person interrogated; and the court shall thereupon determine whether the witness is bound to answer or not, and the grand jury shall be immediately informed of the decision.

SEC. 403. [Same.]--If the court determine that the witness is bound to answer, and he persist in his refusal, he shall be brought before the court, who shall proceed in the same manner as if the witness had been interrogated and refused to answer in open court.

SEC. 404. [New jurors.]-In case of the sickness, death, discharge, or nonattendance of any grand juror, after the grand jury shall be affirmed or sworn, it shall be lawful for the court, at their discretion, to cause another to be sworn or affirmed in his stead.

SEC. 405. [New jury.]-After the discharge of the grand jury, it shall be lawful for the court, when it shall be deemed necessary, to order the sheriff to call together a new grand jury from the bystanders or neighboring citizens, of sixteen good and lawful men, having the qualifications of grand jurors, who shall be re

SEC. 405. A judge in calling a term of court has no authority to order sheriff to summon a grand jury. 9 Neb. 164. See note to section 664 civil code, p. 664.

turned and sworn or affirmed, and shall proceed in the same manner in all respects as provided by law in respect to grand juries.

SEC. 406. [Secresy.]-No grand juror or officer of the court shall disclose that an indictment has been found against any person not in custody or under bail, except by the issuing of process, until the indictment is filed and the case docketed.

SEC. 407. [Same.-No grand juror shall be allowed to state or testify in any court in what manner he or other members of the grand jury voted on any question before them, or what opinion was expressed by any juror in relation to such question.

SEC. 408. [When bill to be preferred.]—At least twelve of the grand jurors must concur in the finding of an indictment; when so found, the foreman shall indorse on such indictment the words "A true bill," and subscribe his name thereto as foreman.

SEC. 409. [Visit jail.]-The grand jury shall, once at each term of the court at which they may be in attendance, visit the county jail, examine and report its condition as required by law.

• SEC. 410. Disposition of indictments.]--Indictments found by a grand jury, shall be presented by their foreman to the court, and shall be filed with the clerk, who shall endorse thereon the day of their filing, and shall enter each case upon the appearance docket, and also upon the trial docket of the term, as soon as the parties indicted have been arrested.

SEC. 411. [Assignment of causes.]-The court shall assign said indictments for trial at as early a time in such term as is practicable, and the recognizances of parties and witnesses shall, in all such causes, be taken for their appearance at the time so assigned; and in case of the continuance of any cause to the next term of the court, such recognizances shall be for the appearance of the parties and witnesses on such day thereof as the court may direct; and at the end of the term the clerk shall deliver the indictments undisposed of to the prosecuting attorney for safe keeping.

CHAPTER XL.-OF INDICTMENTS.

or

SEC. 412. [Defects not fatal.]-No indictment shall be deemed invalid nor shall the trial, judgment, or other proceedings be stayed, arrested, or in any manner affected: First. By the omission of the words, "with force and arms,' any words of similar import; or, Second. By omitting to charge any offense to have been contrary to a statute or statutes; or, Third. For the omission of the words, "as appears by the record," nor for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense; nor for stating the time imperfectly; nor for want of a statement of the value or price of any matter or thing, or the amount of damages, or injury, in any case where the value, or price, or the amount of damages, or injury, is not of the essence of the offense; nor for the want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment; nor that dates and numbers are represented by figures; nor for an omission to allege that the grand jurors were impaneled, sworn, or charged; nor for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime or person charged; nor for want of the averment of any matter not necessary to be proved; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.

SEC. 413. Variances not fatal.-Whenever on trial of any indictment for any offense, there shall appear to be any variance between the statement in

SEC. 412. An indictment not void by reason of omision of the word "chosen." 1 Neb. 369. Nor by words "and the jurors aforesaid on their oath aforesaid," etc. 4 Neb. 285. When there are several counts in the first of which time and place are specifically stated,it is sufficient to allege in subsequent counts that the offense therein described was then and there committed. 9 Neb. 64.

such indictment, and the evidence offered in proof thereof in the christian name or surname, or both christian and surname or other description whatever of any person whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial shall be had, shall find that such variance is material to the merits of the case or may be prejudicial to the defendant.

SEC. 414. [Description of instrument.]-In any indictment for falsely making, altering, forging, printing, photographing, uttering, disposing of or putting off any instrument, it shall be sufficient to set forth the purport and value thereof.

SEC. 415. [Engraved plate, etc.-In any indictment for engraving or making the whole or any part of any instrument, matter or thing, or for using or having the unlawful custody or possession of any plate or other material upon which the whole or any part of any instrument, matter or thing shall have been engraved or made, or for having the unlawful custody or possession of any paper upon which the whole or any part of any instrument, matter or thing shall have been made or printed, it shall be sufficient to describe such instrument, matter or thing by any name or designation by which the same may be usually known.

SEC. 416. [Instruments in other cases.-That in all other cases whenever it shall be necessary to make any averment in any indictment as to any instrument, whether the same consists wholly or in part of writing, print, or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof.

SEC. 417. [Allegation-Attempt to defraud.--It shall be sufficient in any indictment where it shall be necessary to allege an intent to defraud, to allege that the party accused did the act with intent to defraud without alleging an intent to defraud any particular person or body corporate, and on the trial of any such indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with the intent to defraud.

SEC. 418. (Ownership.]-When any offense shall be committed upon, or in relation to any property belonging to several partners or owners, the indictment for such offense shall be deemed sufficient if it allege such property belonged to any one or more of such partners or owners, without naming all of

them.

SEC. 419. [Joinder of offenses.-An indictment for larceny may contain also a count for obtaining the same property by false pretenses, or a count for embezzlement thereof, and for receiving or concealing the same property, knowing it to have been stolen; and the jury may convict of either offense, and may find all or any of the persons indicted guilty of either of the offenses charged in the indictment.

SEC. 420. [Money described.-In every indictment in which it shall be necessary to make any averment as to any money, or bank bill, or notes, United States treasury notes, postal and fractional currency, or other bills, bonds or notes, issued by lawful authority and intended to pass and circulate as money, it shall be sufficient to describe such money or bills, notes, currency or bonds, simply as money, without specifying any particular coin, note, bill or bond; and such allegation shall be sustained by proof of any amount of coin or of any such note, bill, currency or bond, although the particular species of coin of which such amount was composed, or the particular nature of such note, bill, currency or bond shall not be proved.

SEC. 421. [Election cases. When an offense shall be committed in relation to any election, an indictment for such offense shall be deemed sufficient if it allege that such election was authorized by law, without stating the names of the officers holding the election, or the persons voted for, or the offices to be filled at such election.

SEC. 422. [Perjury--Subornation.]-That in every indictment for perjury or subornation of perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and before what court or authority the oath or affirmation was taken, averring such court or authority to have full power to administer the same, together with the proper averment or counts to falsify the matter or matters, wherein the perjury is assigned, without setting forth any part of any record or proceeding, in law or equity, other than as aforesaid, and without setting forth the commission or authority of the court, or other authority before whom the perjury was committed.

SEC. 423. Receiver of stolen goods, where prosecuted.]--Whenever any person shall be liable to prosecution as the receiver of any personal property that shall have been feloniously stolen, taken or embezzled, he may be indicted in any county where he received or had such property, notwithstanding the theft was committed in another county.

SEC. 424. [Crime committed on county line.--When an offense shall be committed on a county line, the trial may be in either county divided by such line; and where any offense shall be committed against the person of another, and the person committing the offense shall be in one county, and the person receiving the injury shall be in another county, the trial may be had in either of said counties.

SEC. 425. [Manslaughter.-In any indictment for manslaughter, it shall not be necessary to set forth the manner in which, or the means by which the death was caused; but it shall be sufficient to charge that the defendant did unlawfully kill and slay the deceased.

CHAPTER XLI.-ARREST AND ITS INCIDENTS AFTER INDICTMENT.

SEC. 426. [Warrant--Arrest.]--A warrant may be issued in term time or in vacation of the court, on an indictment found or presentment made in any county, and when directed to the sheriff of the county where such indictment was found, or presentment made, it shall be lawful for such officer to pursue and arrest the accused named in such warrant, in any county of this state where he may be found, and commit him to jail, or hold him to bail, as provided in this code.

SEC. 427. [Same-Non-resident.]-When the party accused shall reside out of the county in which such indictment was found, it shall be lawful to issue a warrant thereon, directed to the sheriff of the county where the accused shall reside or may be found; and it shall be the duty of such officer to arrest the accused and convey him to the county from which such writ was issued, and there commit him to the jail of said county, or hold him [to bail,] as provided in the preceding section.

SEC. 428. [Recognizance in vacation.]—When any sheriff or other officer shall be charged with the execution of a warrant issued on any indictment for a misdemeanor, he shall, during the vacation of the court from which the writ issued, have authority to take the recognizance of the person so indicted, together with sufficient sureties, resident and freeholders in the county from which such writ issued, in a sum of not less than fifty nor more than five hundred dollars, conditioned for the appearance of such person on the first day of the next term of such court.

SEC. 429. [Return and filing. The sheriff or other officer shall return the said writ according to the command thereof, with the name of the surety or sureties, together with the recognizance taken as aforesaid; and the recognizance so taken and returned shall be filed and recorded by the clerk of the court to which the same was returned, and may be proceeded on in the same way as if such recognizance had been taken in said court during term time.

SEC. 430. [Recognizance in case of felony.]--When any person shall have been indicted for a felony, and the person so indicted shall not have been arrested or recognized to appear before the court, the court may, at their discre

tion, make an entry of the cause on their journal, and may order the amount in which the party [indicted] may be recognized for his appearance by any officer charged with the duty of arresting him.

SEC. 431. [Same-Indorsement.-The clerk issuing a warrant on such an indictment shall indorse thereon the sum in which the recognizance of the accused was ordered, as aforesaid, to be taken.

SEC. 432. [Same.]-The officer charged with the execution of the warrant aforesaid shall take the recognizance of the party accused in the sum ordered as aforesaid, together with good and sufficient sureties, conditioned for the appearance of the accused at the return of the writ before the court out of which the same issued; and such officer shall return such recognizance to the said court, to be recorded and proceeded on as provided in this code.

SEC. 433. [Return of all recognizances.]-All recognizances taken during vacation of any court, by any judge or other officer thereof authorized to take them, shall be signed and sealed by the parties, and certified to by the officer taking the same.

SEC. 434. [Indictment of convicts.]-Whenever any convict in the penitentiary shall be indicted for any offense committed while confined therein, said convict shall remain in the custody of the warden of said penitentiary, subject to the order of the district court of the county where the penitentiary, in which such convict is confined, is situate.

CHAPTER XLII.-MOTIONS AND ISSUES UPON THE INDICTMENT.

SEC. 435. Two indictments for same act. If there be at any time pending against the same defendant two or more indictments for the same criminal act, the prosecuting attorney shall be required to elect upon which he will proceed; and upon trial being had thereon the remaining indictment shall be quashed.

SEC. 436. [Indictment recorded-Copy for accused.---The clerk of the district court shall, upon the filing of any indictment with him, and after the peson indicted is in custody or let to bail, cause the same to be entered of record on the journal of said court, and in case of the loss of the original, such record or a certified copy thereof shall be used in place thereof upon the trial of the cause. And within twenty-four (24) hours after the filing of an indictment for felony, and in every other case on request, the clerk shall make and deliver to the sheriff, the defendant, or his counsel a copy of the indictment, and the sheriff on receiving such copy shall serve the same upon the defendant; and no one shall be, without his assent, arraigned or called on to answer to any indictment until one day shall have elapsed, after receiving in person or by counsel, or having an opportunity to receive a copy of such indictment as aforesaid. [Amended 1877, 4.]

SEC. 437. [Counsel for accused.]-The court before whom any person shall be indicted for any offense which is capital, or punished by imprisonment in the penitentiary, is hereby authorized and required to assign to such person counsel not exceeding two, if the prisoner has not the ability to procure counsel, and they shall have full access to the prisoner at all reasonable hours; and it shall not be lawful for the county clerk or county commissioners of any county in this state to audit or allow an account, [bill,] or claim hereafter presented by an attorney or counselor at law for services performed under the provisions of this section, until said account, bill, or claim shall have been examined and allowed by the court before whom said trial is had, and the amount so allowed for such services certified by said court; Provided, That no such account, bill, or claim shall in any case except in cases of homicide, exceed one hundred dollars.

SEC. 438. Time given.]-The court shall allow the accused a reasonable time to examine the indictment and prepare exceptions thereto.

SEC. 439. Pleas and motions.--The accused may except to an indiet

SEC. 439. Plea in abatement must state facts. 1 Neb. 395. 10 Neb. 396.