stay of the judgment, to issue to the sheriff or constable a copy of such judgment, with his mandate attached, under the hand

or hand

and seal of the court; and it shall be the duty of the sheriff or constable to arrest the defendant and commit him to jail unless or until such fine and costs are paid: Provided, Any defendant imprisoned under the provisions of this act may be released therefrom as now provided by law.

See section 1944, and note.

1727. Commitment to jail.-86. If such defendant do not immediately pay or replevy such judgment and costs the justice shall commit him to jail, there to remain one day for each dollar of such fine and costs so adjudged against him.

See notes to section 1716, Burns' R. S. 1901.

[Acts 1905, p. 584. In force April 15, 1905.]

1728. Jurors-Number.-87. The grand jury shall be composed of six persons having the qualifications required by law.

See sections 1717-1737, Burns' R. S. 1901, and notes.

1729. Summons to jurors.-88. Hereafter no grand jury shall be summoned to appear at any term of a circuit court unless as provided in this act.

1730. Order for venire.--89. Whenever the judge of a circuit or criminal court shall deem it necessary that a grand jury shall sit in any county of his circuit, it shall be his duty to make an order requiring the clerk to issue a venire for such jury to appear on such day as may be named in the order, and such venire shall be for the jury drawn and selected for the term as is now provided by law: Provided, That the court may in its discretion discharge such grand jury and order a new one drawn in the manner provided by law: And provided.

further, That the grand jury shall be convened at least once in every year in every county.

See notes to section 1717b, Burns' R. S. 1901.

1731. Discharge of grand jury.-90. Whenever in the opinion of the court, the grand jury has been in session long enough, and the public interests require that it should adjourn, it shall be the duty of such court to make an order declaring such grand jury adjourned.

1732. Excuses-Fine.-91. A grand juror may be excused from attending on account of his own sickness or physical infirmity; or the sickness or death of any member of his family; or because he is a ferryman, or a member of a fire company in a city or town, in active service; or a minister of the gospel; or because he is over sixty years of age, and desires to be excused for such reason. If a person summoned as a grand juror fail to appear and show to the satisfaction of the court good cause for non-attendance, he shall be punished by a fine of ten dollars, imposed by the court as for a contempt, by an order to be entered on the order book of the court. The order shall be deemed a judgment, in all respects, in favor of the grand jury [county].

See notes to section 1718, Burns' R. S. 1901.

1733. Re-summons-Talesmen.-92. Whenever the grand jury is dismissed before the final adjournment, they may be summoned to attend again at the same term if necessary. If a full jury do not attend, the number may be completed from the bystanders; but before any salesman [talesman] is accepted and sworn the court must inquire of him, under oath, as to his qualifications.

See notes to section 1720, Burns' R. S. 1901.

1734. Oath of jurors.-93. The following oath must be administered to the grand jury:

"You, and each of you, do solemnly swear or affirm that you will diligently inquire, and true presentment make, of all felonies and misdemeanors, committed or triable within this county, of which you shall have or can obtain legal evidence; that you will present no person through malice, hatred or ill-will, nor leave any unpresented through fear, favor or affection, or for any reward, or the promise or hope thereof, but in all your indictments you will present the truth, the whole truth and nothing but the truth; that you will not disclose any evidence given or proceeding had before the grand jury. Those of you who swear, so help you God, and those of you who affirm do solemnly affirm under the pains and penalties of perjury.'

See notes to section 1721, Burns' R. S. 1901.

1735. Oath of new juryman.-94. If after the grand jury are sworn, any person be afterward appointed as a grand juror, the oath, as prescribed in the preceding section, must be administered to him.

1736. Charge by court-Foreman.-95. The grand jury, being impaneled and sworn, must be charged by the court. In such charge, the court must plainly instruct them as to their duties, and give them such information as it may deem proper in relation to any charges and crimes returned into court, or likely to come before the grand jury. Thereupon the court shall appoint one of such grand jurors as foreman. See notes to section 1723, Burns' R. S. 1901.

1737. Clerk, Stenographer.-96. The grand jury must select one of its number as clerk, who must take minutes of the proceedings, except the votes of the individual members on the finding of an indictment, and also of the evidence given before the grand jury, which shall be preserved for the use of the prosecuting attorney: Provided, however, That such grand jury may by unanimous vote and the consent of the court employ a stenographer at not to exceed five dollars per day, to take the minutes and evidence under the supervision of such grand jury and the clerk selected by it. Such stenographer before entering upon his or her duties shall subscribe to an oath, to be administered by the clerk of such court, that he or she will in no way reveal any of the proceedings had before such grand jury.

See notes to section 1724, Burns' R. S. 1901.

1738. Challenge-Causes for.-97. A person held to answer a charge for a felony or misdemeanor may challenge an individual grand juror, before the jury is sworn, for one or more of the following causes only: First. That such individual grand juror is a minor.

Second. That he is not a freeholder or a householder of the county. Third. That he is an alien.

Fourth. That he is insane.

Fifth. That he is the prosecuting witness upon a charge against the defendant.

Sixth. That he is a witness on the part of the prosecution.

Seventh. That such a state of mind exists on his part in reference to the party charged that he can not act impartially and without prejudice to the substantial rights of the challenger.

Eighth. That he holds his place in the grand jury by reason of the corruption of the officer who selected and impaneled the grand jury. Ninth. That he is in the habit of becoming intoxicated.

Tenth. That he has requested, or caused any officer or his deputy to be requested, to place him upon the grand jury.

See notes to section 1725, Burns' R. S. 1901.

1739. Trial of challenge.-98. Such challenge may be oral. If the facts alleged be denied, the challenge must be tried at once by the court. and the juror challenged may be examined as a witness to prove or

disprove the challenge, and he is bound to answer every question pertinent to the inquiry therein. The challenger, and other witnesses then present, may also be examined on either side; and the rules of evidence applicable to the trial of other issues shall govern the admission or exclusion of testimony on the trial of the challenge; but the matter must be summarily heard, and the court must allow or disallow the challenge. 1740. Challenge sustained-New juror.-99. If a challenge be allowed to a grand juror, for any of said causes, he must be forthwith discharged from the grand jury, and his place shall be filled from among the bystanders.

1741. Foreman administers oaths.-100. The foreman of the grand jury is authorized to administer all oaths to witnesses.

1742. Disclosures by juryman.-101. If a member of the grand jury know, or have reason to believe, that a public offense has been committed which is triable in the county, he must declare the same to his fellow jurors, who must thereupon investigate the same.

1743. Secret proceedings.-102. Every member of the grand jury must keep secret whatever he or any other grand juror may have said, or in what manner he or any other grand juror may have voted on a matter before the grand jury.

1744. Juror as court witness.-103. A member of the grand jury may, however, be required by any court to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court; or to disclose the testimony given before them by any person upon a charge against him for perjury, in giving his testimony or upon his trial therefor.

See notes to section 1731, Burns' R. S. 1901.

1745. Prohibited questions.-104. A grand juror can not be questioned for anything he may say or any vote he may give in the grand jury relative to a matter legally pending before the grand jury, except for a perjury of which he may have been guilty in making an accusation or giving testimony to his fellow jurors.

See note to section 1732, Burns' R. S. 1901.

1746. Witnesses-Refusal to answer.-105. Subpoenas for witnesses before the grand jury shall be issued on the order of the grand jury, if in session, and, if not in session, on the order of the prosecuting attorney; and such witnesses may be compelled to appear and testify before the grand jury. If a witness before the grand jury refuse to answer an interrogatory, the fact shall be communicated to the court in writing, in which writing the question 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, and the grand jury shall be immediately informed

of the decision. Each witness shall also be sworn not to divluge except when legally called upon to do so, any portion of his testimony before the grand jury, for a violation of which portion of such oath such witness shall be liable to punishment as for a contempt.

See notes to section 1733, Burns' R. S. 1901.

Witnesses can not be compelled to testify before a grand jury as to matters tending to criminate themselves, but if they testify as to such matters without objection they will be deemed to have waived their privileges, and grand jurors are not required to inform witnesses of their right to refuse to testify. State v. Comer, 157 Ind. 611.

1747. Obstinate witness.-106. If the court determine that the witness is bound to answer, and he persist in his refusal, he shall be brought before the court, which shall proceed in the same manner as if the witness had been interrogated and refused to answer in open court.

1748. Order of business.-107. The order of inquiry made by the grand jury shall be as follows:

First. Into the case of every person imprisoned in the county jail on a criminal charge, and not indicted.

Second. Into the case of every person under bail in said county to answer a criminal charge, and not indicted.

Third. Into wilful and corrupt misconduct in office of public officers of every description, and into any charge of extortion preferred against any such officer.

Fourth. Into the condition and management of the public prisons and poor houses in the county.

Fifth. Into violations of the criminal laws of this state generally, of which the court has jurisdiction.

See notes to section 1735, Burns' R. S. 1901.

1749. Prisons-Poor house.-108. The grand jury, during term time of the court, shall be entitled to free access, at all reasonable times, to the county prison or prisons and the county poor house, for the purpose of examining their condition and management.

1750. Prosecutor's presence.-109. The prosecuting attorney or his deputy shall be allowed at all times to appear before the grand jury, for the purpose of giving information relative to any matter cognizable by it, or advice upon any legal matter when required; and he may interrogate witnesses before the grand jury, when the jury or he deem it necessary, but no prosecuting attorney, officer or person shall be present with the grand jury during the expression of their opinions or in giving their votes upon any matter before them.

See notes to section 1737, Burns' R. S. 1901.