DIVISION XV. CONSTRUCTION OF THIS CHAPTER, AND DUTY OF COURTS. SECTION 162. Indictment, form of. 163. Exceptions to form of indiotment. SECTION 169. Offences herein defined, how prosecuted and punished. 164. Civil actions may be maintained for offences un- 170. When punishment discretionary, court shall de der this chapter. 165. Judges of supreme court, their duty under this chapter. 166. Death, punishment of, how inflicted. termine the same. 171. Fines, how disposed of. 173. Power of court in cases of fine. 174. Infamous, what crimes deemed, and disabilities therefor. SECTION 162. Every indictment or accusation of the grand jury, shall be deemed sufficiently technical and correct, which states the offence in the terms and language of this code, or so plainly that the nature of the offence may be easily understood by the jury. The commencement of the indictment shall be in substance as follows: in The grand jurors, chosen, selected and sworn, in and for the county of the name and by the authority of the people of the State of Illinois, upon their oaths present, &c. (here insert the offence, and time and place of committing the same, with reasonable certainty.) SEC. 163. All exceptions which go merely to the form of an indictment, shall be made before trial, and no motion in arrest of judgment, or writ of error, shall be sustained, for any matter not affecting the real merits of the offence charged in such indictment. No indictment shall be quashed for want of the words "with force and arms, or of the occupation or place of residence of the accused, nor by reason of the disqualification of any grand juror or grand jurors. SEC. 164. Nothing in this chapter contained, shall be so construed as to prevent. the party or parties injured, from having and maintaining a civil action for all damages and losses, that he, she or they may have sustained in consequence of the commission of any criminal offence herein punished; and no court shall allow or entertain the plea that the private injury is merged in the crime, or in any manner affected thereby Provided, however, The record of conviction shall not be used as evidence in any civil action brought on any forged writing, or to recover the damages and losses sustained by the commission of any such criminal offence. SEC. 165. It shall be, and is hereby declared to be the duty of the judges of the supreme and circuit courts, to make a special report biennially to the legislature, of all such defects, omissions or imperfections in this code, as experience may suggest. SEC. 166. The manner of inflicting the punishment of death, shall be by hanging the person convicted by the neck until death, at such time as the court shall direct, not less than fifteen, nor more than twenty-five days from the time sentence is pronounced, unless for good cause, the court or governor may prolong the time. SEC. 167. The court may order, on the application of any respectable surgeon or surgeons, that the body of the convict shall, after death, be delivered to such surgeon or surgeons for dissection. SEC. 168. This chapter shall extend to females committing any of the offences made punishable by this chapter, although they may not be expressly named. In all cases where the punishment shall be by confinement in the penitentiary, the jury shall say in their verdict for what term the offender shall be confined; and the court in pronouncing sentence, shall designate the portion of time such offender shall be confined to solitary imprisonment, and what portion to hard labor. Persons under the age of eighteen years shall not be punished by confinement in the penitentiary for any offence except robbery, burglary or arson; in all other cases, where a penitentiary punishment is or shall be provided, such person under the age of eighteen years, shall be punished by imprisonment in the county jail, for any term not exceeding eighteen months, at the discretion of the court. SEC. 169. All offences herein defined, shall be prosecuted and punished as by this chapter is prescribed, and not otherwise; and all other offences may be punished by fine and imprisonment in the discretion of the court: Provided, The fine shall in no case exceed one hundred dollars, and the imprisonment six months. SEC. 170. Whenever the punishment for any crime or misdemeanor is discretionary as to the extent or amount thereof, the court shall determine and affix the same, whether the punishment consist of corporeal punishment, imprisonment or fine. SEC. 171. All fines imposed by virtue of any of the laws of this State, for the punishment of crimes and misdemeanors, shall, when collected, be paid into the treasury of the county where the offence shall be tried, for the use of such county, unless otherwise expressly directed: Provided, however, That nothing in this section contained, shall be so construed as to found or constitute a cause of challenge or objection to any grand or petit juror. SEC. 172. The benefit of clergy, appeals of felony and trials by battle, shall be and are hereby forever abolished. SEC. 173. The court shall have power in all cases of conviction under this chapter, when any fine is inflicted, to order, as part of the judgment of the court, that the offender shall be committed to jail, there to remain until the fine and costs are fully paid or otherwise legally discharged. SEC. 174. Each and every person who may hereafter be convicted of the crime of rape, kidnapping, wilful and corrupt perjury or subernation of perjury, arson, burglary, robbery, sodomy or the crime against nature, incest, larceny, forgery, counterfeiting or bigamy, shall be deemed infamous, and shall forever thereafter be rendered incapable of holding any office of honor, trust or profit, of voting at any election, of serving as a juror, and of giving testimony. DIVISION XVI. OF PROCESS, INDICTMENT, ARRAIGNMENT, TRIAL, JUDGMENT, EXECUTION, AND WRIT OF ERROR. SECTION 175. Recognizance, how taken. 176. Capias shall be issued when indictment found a true bill. 177. Subpoenas shall be issued, &c.; penalty for refusal to obey subpoenas; attachments for witnesses, how issued. 178. Venire not necessary in criminal cases, tales may be ordered when pannel exhausted. 179. Prosecutor to be indorsed on "true bill" found by grand jury, except in certain cases; when prosecution deemed malicious, prosecutor liable for costs. 180. Persons charged with crime, to be furnished with copy of indictment and list of jurors and witnesses. 181. Prisoner may plead "not guilty." 182. When prisoner stands mute, plea of "not guilty" to be entered. 183. When prisoner pleads guilty" court shall ex- 184. Challenge of jurors allowed. 187. Grand jury to hear witnesses on behalf of peo- 190. Liability of officer while attending jury, and of 191. Offenders to pay costs when convicted. 193. Judgment for fine and costs may be replevied. 196. Sureties may be released in certain cases, and 197. Bill of exceptions shall be allowed. 199. Writs of error considered writs of right, but SECTION 175. It shall be the duty of the circuit court, when any indictment shall be found as a true bill, to make an order, fixing the amount of bail to each offence bailable by law, to be indorsed on the process by the clerk; and the sheriff, coroner or other officer who shall arrest the indicted person or persons, shall let such indicted person or persons to bail, upon his, her or their entering into a recognizance, with one or more securities, in the sum or sums specified on said process : which recognizance shall be made to the people of the State, conditioned for the appearance of the indicted person or persons, on the first day of the next circuit court to be holden in and for such county, to answer the said indictment and not depart the court without leave; which recognizance shall be signed by the persons entering into the same, and certified by the officer taking it. Every recognizance so taken, is hereby declared to be valid and binding, and shall not be set aside or adjudged insufficient for want of form. SEC. 176. It shall be the duty of the clerks of the circuit courts of each county of this State, to issue process of capias for the apprehension of all persons indicted in said courts respectively, to be directed to the sheriff, coroner and constable of the county where such indicted person or persons shall then be; and it shall be the duty of the sheriff, or in case of his absence or inability, of the coroner or some one of the constables of the county to which said capias is directed, to arrest the person or persons therein named, and to let him or them to bail, where the offence is bailable; or if the offence be not bailable, or not sufficient bail be offered, then the officer making the arrest shall bring his, her or their bodies to the jail of the county where said capias is returnable, and deliver such accused person or persons, together with the capias, to the keeper of the jail, there to remain. until discharged by due course of law. It shall also be the duty of any officer who shall take any recognizance in pursuance of this section, to return the same to the clerk by the first day of the court to which it may be returnable. It shall be lawful for any officer who has the custody of any prisoner or prisoners by virtue of this section, to pass through any counties which lie in his route between the place of arrest and the county to which he is taking such prisoner or prisoners, and to lodge or deposit said prisoner or prisoners in any jail on his route, for safe custody, for one night or more, as occasion may require; and it is hereby made the duty of the county commissioners' court of the county where such indictment shall be found, to pay to the officer who shall bring any offender or offenders from another county, his reasonable charges for such service: Provided, That nothing contained in this or the preceding section, shall prevent a capias from being issued without such indorsement, returnable instanter; which capias shall authorize and require the accused to be arrested and immediately brought into court, when he or she shall be either committed, bailed or tried, at the term at which the indictment shall be found. SEC. 177. It shall be the duty of the clerks of the circuit courts, to issue subpœnas, either on the part of the people or of the accused in any indictment, directed as in the preceding section, to any county in this State. And every witness who shall be duly subpoenaed, and shall neglect or refuse to attend any circuit court, pursuant to the requisitions of such subpoena, shall be proceeded against and punished for contempt of the court. And attachments against witnesses who live in a different county from that where such subpœna is returnable, may be served in the same manner as capiases are directed to be served, out of the county from which they issue, in the preceding section. And SEC. 178. It shall not be necessary to issue a venire in any criminal case. in all criminal cases where the pannel of jurors shall be exhausted, by challenges or otherwise, and whether any juror has been elected and sworn or not, it shall be competent for the court to order on their minutes a tales for any number of jurors, not exceeding twenty-four, returnable instanter, out of which persons so ordered to be summoned, it shall be lawful to empannel a jury for the trial of any criminal case; but should the tales ordered be insufficient, by reason of challenges or otherwise, to form an impartial jury, the court may, from time to time, make such further orders on their minutes for additional tales men, returnable instanter, until a full jury shall be obtained. SEC. 179. No bill of indictment for false imprisonment, or wilful and malicious mischief, shall be found "a true bill" by any grand jury, unless a prosecutor is indorsed thereon by the foreman of the grand jury, with the consent of the prosecutor, except the same shall be found upon the information and knowledge of two or more of the grand jury, or upon the information of some public officer in the necessary discharge of his duty; in which case it shall be stated at the end of the indictment how the same is found, and then no prosecutor shall be required; but in cases where a prosecutor is indorsed on the indictment, and the defendant shall be acquitted on trial, the petit jury acquitting such defendant shall find, in addition to the verdict of "not guilty," whether the prosecutor had acted maliciously by instituting the prosecution or not; and whenever the petit jury shall return with a verdict of "not guilty," that the prosecutor had acted maliciously in the premises, the court shall enter judgment for costs against the prosecutor, including a fee of three dollars to the attorney general or circuit attorney, and award execution for the same, as is done in civil cases: Provided, That nothing herein contained shall render the prosecutor incompetent to be a witness, either before a grand or petit jury. SEC. 180. Every person charged with treason, murder or other felonious crime, shall be furnished, previous to his arraignment, with a copy of the indictment, and a list of the jurors and witnesses. In all other cases he or she shall, at his or her request, or the request of his or her counsel, be furnished with a copy of the indictment and a list of the jurors and witnesses. SEC. 181. Upon the arraignment of a prisoner, it shall be sufficient, without complying with any other form, to declare, orally, by himself or herself, or his or her counsel, that he or she is not guilty; which declaration or plea shall be immediately entered upon the minutes of the court by the clerk, and the mention of the arraignment and such plea shall constitute the issue between the people of the State and the prisoner; and if the clerk should neglect to insert in the minutes the said arraignment and plea, it may and shall be done at any time by order of the court, and then the error or defect shall be cured. SEC. 182. In all cases where the party indicted shall, on being arraigned, obstinately stand mute, or refuse to plead, standing mute or refusing to plead, shall be adjudged and taken to be a denial of the facts charged in the indictment, and the court shall order the plea of "not guilty" to be entered on the minutes, and the trial, judgment and execution shall proceed in the same manner as it would have done if the party had pleaded "not guilty." SEC. 183. In all cases where the party indicted shall plead "guilty," such plea shall not be entered until the court shall have fully explained to the accused the consequences of entering such plea; after which, if the party indicted persist in pleading "guilty," such plea shall be received and recorded, and the court shall proceed to render judgment and execution thereon, as if he or she had been found guilty by a jury. In all cases where the court possess any discretion as to the extent of the punishment, it shall be the duty of the court to examine witnesses as to the aggravation and mitigation of the offence. SEC. 184. Every person arraigned for any crime punishable with death, shall be admitted on his trial, to a peremptory challenge of twenty jurors, and no more; and every person arraigned for any offence, that may be punished by imprisonment for a term exceeding eighteen months, shall be admitted to a peremptory challenge of ten jurors; and in all other criminal trials, the defendant shall be allowed a peremptory challenge of six jurors. The attorney prosecuting on behalf of the people, shall be admitted to a peremptory challenge of one-half of the number of jurors that the accused is entitled to. SEC. 185. In no case shall the right to a trial by jury de mediatate linguæ, be allowed in criminal prosecutions. SEC. 186. Where an offence shall be committed on a county line, the trial may be in either county divided by such line; and where any offence shall be committed against the person of another, and the person committing the offence 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. |