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Sec. 187. In all complaints exhibited before the grand jury of any county, they shall hear the witnesses on behalf of the people only; and may find an indictment on the oath of one witness only, or upon the information of two of their own body, except in cases of treason or perjury, where at least two witnesses to the same fact shall be necessary; and in finding a bill of indictment, at least sixteen of the grand jury shall be present, and at least twelve of them shall agree to the finding. The foreman of the grand jury may swear or affirm all witnesses that
may come before
Sec. 188. All trials for criminal offences shall be conducted according to the course of the common law, except when this chapter points out a different mode, and the rules of evidence of the common law, shall also, unless changed by this chapter be binding upon all courts and juries in criminal cases. Juries in all cases shall be judges of the law and the fact.
Sec. 189. When the jury shall retire to consider of their verdict in any crim. inal case, a constable or other officer, shall be sworn or affirmed to attend the jury to some private and convenient place, and to the best of his ability, keep them together without meat or drink, water excepted, unless by leave of the court, until they shall have agreed upon their verdict, nor suffer others to speak to them, and that when they shall have agreed on their verdict, he will return them into court : Provided, however, That in any cases of misdemeanor only, if the prosecutor for the people, and the person on trial, by himself or counsel, shall agree, which agreement shall be entered upon the minutes of the court, to dispense with the attendance of an officer upon the jury, or that the jury, when they have agreed upon their verdict, may write and seal the same, and after delivering the same to the clerk, may separate : it shall be lawful for the court to carry into effect any such agreement, and receive
any such verdict, so delivered to the clerk, as the lawful verdict of any such jury.
Sec. 190. If any officer sworn to attend upon a jury, shall knowingly violate his oath or affirmation, or shall so negligently perform his duties, that the jury shall separate without leave of the court, or obtain food or drink, (except water,) or if any person not belonging to the jury, shall hold conversation with any of the jury, every person and officer so offending, shall be punished for a contempt of the court by fine and imprisonment, or both, in the discretion of the court.
Sec. 191. In all cases where any person or persons shall be convicted of any crimes or misdemeanors specified in this chapter, or of any offences at common law, the court shall give judgment that the offender or offenders so convicted shall pay the costs of the prosecution.
Sec. 192. The property, real and personal, of every person who shall be convicted of any of the offences punished by this chapter, shall be bound; and a lien is hereby created on the property, both real and personal, of every such offender, from the time of his or her arrest, if he or she be arrested before indictment, if not, then from the time of finding the indictment, at least so far as will be sufficient to pay the fine and costs of prosecution. And it shall be the duty of the clerk of the circuit court, at the end of each term, to issue an execution for every fine which shall have been imposed during the term, and which remains unpaid, and for all costs of conviction in criminal cases; in which execution shall be stated, the day on which the arrest was made, or indictment found, as the case may be, which execution shall be delivered to the sheriff or coroner, and shall be by him levied on all the estate, real and personal, which the defendant or defendants possessed, as his
or her own real or personal estate, on the day mentioned in such execution, and any property, real and personal, subsequently acquired by him or her; which property, so to be levied upon, shall be advertised as in civil cases, and sold for what it will bring. It shall be no objection to the selling of any property under such execution, that the body is in custody for said fine and costs.
Sec. 193. It shall and may be lawful for any person or persons, convicted of any criminal offence, to replevy the judgment for the fine and costs, or the costs only when no fine shall be imposed, by such convicted person or persons, with one or more good and sufficient freeholders entering into a recognizance before the circuit court, to the people of this State, for the payment of such fine and costs, or costs only, within five months from the date of the acknowledgment; which recognizance, so taken, is hereby declared valid in law, and to create a lien on the real estate of all such persons as shall acknowledge the same, and upon the breach thereof, the clerk is hereby authorized to issue an execution against the goods and chattels, lands and tenements of the persons who entered into recognizance, in the same manner as if it had been a judgment of the court, which execution shall be collected in the same manner as is prescribed in the preceding section. No scire facias shall be necessary previous to issuing such execution. In all cases where the person or persons, convicted as aforesaid, shall replevy the fine and costs, as is provided in this section, then no execution shall issue for said fine and costs, as is prescribed in the next preceding section; and further, such person or persons, after replevying the fine and costs, as aforesaid, shall not be imprisoned for such fine and costs, but such person or persons shall be wholly discharged from any imprisonment in consequence of any conviction, unless where imprisonment is by this chapter made a part of the punishment; in that case, such convicted person or persons, shall be discharged from his or her, or their imprisonment, at the expiration thereof, if he, she or they have replevied the fine and costs as aforesaid.
Sec. 194. Executions for fines and costs of prosecution, and on recognizances taken in pursuance of the preceding section, may be issued into any county in this State.
Sec. 195. Whenever it shall be made satisfactorily to appear to the circuit court, after all legal means have been exhausted, that any person who is confined in jail for any fine or costs of prosecution, for any criminal offence, hath no estate wherewith to pay such fine and costs, or costs only, it shall be the duty of the said court to discharge such person from further imprisonment for such fine and costs ; which discharge shall operate as a complete release of such fine and costs : Proviled, That nothing herein shall authorize any person to be discharged from imprisonment before the expiration of the time for which he or she may be sentenced to be imprisoned, as part of his or her punishment.
Sec. 196. In all cases of bail for the appearance of any person or persons charged with any criminal offence, the security or securities of such person or persons may, at any time before judgment is rendered upon scire facias to show cause why execution should not issue against such security or securities, seize and surrender such person or persons, charged as aforesaid, to the sheriff of the county wherein the recognizance shall be taken; and it shall be the duty of such sheriff, on such surrender and the delivery to him of a certified copy of the recognizance by which such security or securities are bound to take such person or persons, so charged as aforesaid, into custody, and by writing acknowledge such surrender, and thereupon the security or securities shall be discharged from any such recognizance, upon payment of all costs occasioned thereby.
Sec. 197. In the trial of any person or persons, for any crime or misdemeanor, it shall be the duty of the judge before whom such trial is pending, to sign and seal any bill of exception tendered to the court during the progress thereof: Provided, The truth of the case be fairly stated in such bill of exceptions; and thereupon the said exceptions shall, by the clerk of the said court, be entered in the record of such trial, and become, to all intents and purposes, a part thereof.
Sec. 198. The party aggrieved by manifest and material error, appearing of record, in any capital prosecution by indictment, may be relieved by writ of error, upon complying with the following terms, to-wit: The party complaining that error has been committed, shall obtain a certified copy of the record from the clerk, and from the judge of the circuit court, or from the person who acted as prosecuting attorney on the trial, a certificate expressive of an opinion that said record contains a full and true history of the proceedings on said trial; which record, together with an assignment of the errors relied on for the reversal of the judgment, shall be presented to the supreme court, or to one of the justices thereof, in vacation; and if, after inspecting such transcript, the court or justice aforesaid, shall be of opinion that there is reasonable cause for allowing a writ of error, the same shall be granted by order indorsed on the back of said transcript. The allowance of such writ of error shall be sufficient authority to the clerk of the supreme court, to issue a supersedeas to stay the execution of the sentence of death, but not the discharge of the prisoner from jail. Where any judgment, the execution whereof has been stayed by writ of error, as aforesaid, shall be affirmed, the supreme court shall, by order, fix the time when the original sentence of death shall be executed, a copy
of which order shall be sufficient authority to the sheriff for the execution of any prisoner therein mentioned, at the time specified.
Sec. 199. Writs of error in all criminal cases not capital, shall be considered as writs of right and issue of course; but no writ of error shall be a supersedeas, unless the supreme court or one of the justices thereof, in vacation, after inspecting a copy of the record, certified as in the preceding section, together with an assignment of the errors relied on for a reversal of the judgment, shall be of opinion that there is reasonable cause for allowing a writ of error, then the writ shall be granted, by order indorsed on the back of such record, in which case the clerk of the
supreme court shall issue a supersedeas, which shall have the effect to stay execution of the sentence, but not to discharge the prisoner from custody. If the party applying for such writ of error shall at the time be in custody, under the authority of the judgment prayed to be superseded and the said court or justice shall be of opinion that the party obtaining such writ of error ought to be bailed until the determination of such writ of error, the said supreme court or justice may make an order to discharge such prisoner from custody, upon the prisoners entering into a recognizance to the people of the State, before the sheriff of the county where he or she shall be imprisoned, in such sum and with such security as said court or justice shall prescribe; which recognizance shall be conditioned that the prisoner will appear at the next circuit court, to be holden in the county where the trial of such prisoner took place, and at each subsequent term of the circuit court on the first days, until the determination of such writ of error, and that he will be present and submit to such order as the supreme court shall make in the premises, and will not, at any of the terms of said court, in which he shall be bound to appear by said recognizance, depart the court without leave. The recognizance so taken, shall be returned to the next circuit court, and there entered of record, and such pro
ceedings may be thereon had, in case of a breach of the condition of such recognizance, as shall be according to the course of the common law: Provided, however, That in cases where corporeal punishment is inflicted, the prisoner shall in no case be bailed upon the affirmance of any judgment brought into the supreme court, by virtue of this section; the said court shall order and direct the circuit court to carry into effect the judgment of the court below. In case of affirmance, judgment shall be given for costs against the party prosecuting such writ of error, and execution shall issue thereupon from the supreme court.
DIVISION XVII. LIMITATIONS OF INDICTMENTS
AND PENAL ACTIONS.
cept for treason, murder, arson and forgery;
when time fixed by statute; proceedings when indictment quashed.
Section 200. No person or persons shall be prosecuted, tried or punished, for any offence denominated by the common law felony, (treason, murder, arson and forgery excepted) unless the indictment for the same shall be found by a grand jury, within three years next after the offence shall have been done or committed. Nor shall any person be prosecuted, tried or punished for any misdemeanor, or other indictable offence below the grade of felony, or for any fine or forfeiture under any penal statute, unless the indictment, information or action for the same, shall be found or instituted within one year and six months from the time of committing the offence, or incurring the fine or forfeiture: Provided, That nothing herein contained shall extend to any person fleeing from justice: And provided, also, That where any suit, information or indictment, for any crime or misdemeanor, is limited by any statute, to be brought or exhibited within any other time than is hereby limited, then the same shall be brought or exhibited within the time limited by such statute : Provided, also, That where any indictment, information or suit, shall be quashed, or the proceedings on the same set aside or reversed, on writ of error, the time during the pendency of such indictment, information or suit, so quashed, set aside or reversed, shall not be reckoned within this statute, so as to bar any indictment, information or suit, for the same offence.
under the provisions of this chapter, their duties. 202. Duty of officers, when felonious otience is com
mitted. 203. How and by whom offender may be arrested,
and his examination.
cept in certain cases.
ficers shall execute.
SECTION 203. Any person, not an officer, may be authorized to 212. When offender committed to jail, names, &C., execute warrant.
of witnesses to be indorsed on warrant. 203. Prisoner may be conveyed from place of arrest, 213. When copy of warrant of commitment demand
through other counties, to county where offence ed by prisoner, duty of officers, &c.
214. Habeas corpus, when issued, duty of court or 210. Warrant valid, if not under seal.
judge. 211. Search warrant, when may be issued, and dis 215. On hearing of habeas corpus, judge to examine position of stolen goods, when found.
witnesses. Section 201. The judges of the supreme and circuit courts in their respective circuits, and justices of the peace, in their respective counties, shall jointly and severally be conservators of the peace within their respective jurisdictions, as herein designated, and shall have full power to enforce, or cause to be enforced, all laws that now exist, or that shall hereafter be made, for the prevention and punishment of offences, or for the preservation and observance of the peace. They shall have power to cause to be brought before them, or any of them, all persons who shall break the peace, and commit them to jail, or admit them to bail, as the case may require, and to cause to come before them, or any of them, all persons who shall threaten to break the peace, or shall use threats against any person within this State, concerning his or her body, or threaten to injure his or her property, or the property of any person whatever; and also all such persons as are not of good fame, and the said judge or justice of the peace, being satisfied, by the oath of one or more witnesses, of his or her bad character, or that he or she had used threats, as aforesaid, shall cause such person or persons to give good security for the peace, or for their good behavior towards all the people of this State, and particularly towards the individual threatened. If any person against whom such proceedings are had, shall fail to give a recognizance with sufficient security, it shall be the duty of the judge or justice of the peace before whom he or she shall be brought, to commit such person or persons to the jail of the proper county, until such security be given, or until the next term of the circuit court. Such judge or justice of the
peace shall also take recognizances for the appearance of all witnesses at such courts. All recognizances to be taken in pursuance of this section, shall be returnable to the next circuit court, to be holden in the proper county, where all such recognizances shall be renewed or dismissed, as the said circuit court shall, upon examination of the witnesses, deem to be just and right. And where the person or persons committed, are in jail at the sitting of such circuit court, the court shall examine the witnesses, and either continue the imprisonment, bail the prisoner, or discharge him or her, as to the said court shall appear to be right, having due regard to the safety of the citizens of this State.
Sec. 202. When any felonious offence shall be committed, public notice thereof shall be immediately given, in all public places near where the same was committed, and fresh pursuit shall be forthwith made after every person guilty thereof, by sheriffs, coroners, constables, and all other persons who shall be by any of them commanded or summoned for that purpose: every such officer who shall not do his duty in the premises shall be punished by fine, in a sum not exceeding one hundred dollars, or imprisonment, not exceeding three months.
Sec. 203. It shall be lawful for any of the aforenamed judges or justices of the peace, upon oath or affirmation being made before him, that any person or persons have committed any criminal offence in this State, or that a criminal offence has been committed, and that the witness or witnesses have just and reasonable grounds to suspect that such person or persons have committed the same, to issue his warrant under his hand, commanding the officer or person charged with the execution