1800. Forfeiture.-159. If, without sufficient excuse, the defendant neglect to appear for trial or judgment, or upon any other occasion when his presence in court may be lawfully required, according to the condition of his recognizance, the court must direct the fact to be entered upon its minutes, and the recognizance, or money deposited in lieu thereof, as the case may be, is thereupon forfeited.

See notes to section 1790, Burns' R. S. 1901.

If a court finally adjourns for the term, such court can not be afterwards convened and the forfeiture of a recognizance declared. State v. Hindman, 159 Ind. 586.

1801. Suit on recognizance.-160. The prosecuting attorney shall, as soon as such fact of forfeiture is entered, proceed by action upon the recognizance. Such action shall be governed by the rules of civil pleading, so far as applicable. At any time after forfeiture and at any time before suit upon the recognizance, the surety may pay the amount named in the bond to the clerk of the court, who shall give him a receipt thereof [therefor].

See notes to section 1791, Burns' R. S. 1901.

1802. Recognizance, record-Lien.-161. All recognizances, taken to secure the appearance of a defendant in the criminal or circuit court to answer a criminal charge, shall be immediately recorded by the clerk of such court in the order book and entered in the judgment docket, and from the date of such recording and entry such recognizance shall be a lien upon all the real estate in such county owned by the several obligors. Judgments on such forfeited recognizance shall bind and be a lien upon all the real estate of the principal and sureties, within the county in which such judgment is rendered, from the date of such recording and entry of such recognizance in the clerk's office, the date of which lien shall be stated in such judgment of the court. And such judgment shall be executed without relief from valuation or appraisement laws.

1803. Judgment-Collection.-162. Any judgment upon a recognizance forfeited by the principal is collectible upon execution, unless remitted by the governor, although such principal is afterward arrested on the original charge.

See notes to section 1793, Burns' R. S. 1901.

1804. Subrogation.-163. Whenever any person has been compelled. to pay to any prosecuting attorney, clerk of the court, or sheriff, under mere color of judicial proceedings in attachment or garnishment at the suit of the state, the amount of any forfeited recognizance, such person so paying shall, from the date of such payment, be subrogated as against the recognizors in such recognizance, to all the rights of the state under such recognizance, and shall have a cause of action against such recognizors for the amount so paid, as if such recognizance and all the rights of the state under the same had been assigned by the state to the person or persons so paying, at the date of such payment.

1805. Prosecutor, when a party.-164. Whenever any claim or claims to which any person is subrogated under the foregoing section shall be sought to be enforced by any action or legal proceedings, the proper prosecuting attorney shall be made a party to the action or proceedings, to answer as to the fact of such payment and to protect the interests of the state in such action or proceedings: Provided, That nothing in this or the preceding section contained shall, in any event, create any liability or authorize judgment against the state, or render the state, or such attorney, liable for any cost in such action or proceedings.

1806. Return of process by sheriff.-165. The sheriff must return every process issued to him with his doings fully indorsed thereon, and every process, judgment and commitment of the circuit and criminal courts must be executed by the sheriff.

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

1807. Style of prosecution.-166. All criminal prosecutions must be in the name of the State of Indiana.

See sections 1797-1836, Burns' R. S. 1901, and notes.

1808. Forms and rules.-167. The forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those hereinafter prescribed.

See notes to section 1798, Burns' R. S. 1901.

1809. First pleading.-168. The first pleading on the part of the state is either an indictment or affidavit.

1810. contain:

Indictment or affidavit.-169. The indictment or affidavit must

First. The title of the action, specifying the name of the court to which the indictment or affidavit is presented, and the names of the parties.

Second. A statement of the facts constituting the offense in plain and concise language without unnecessary repetition.

See notes to section 1800, Burns' R. S. 1901.

If a statute defining an offense, specifies the acts constituting the offense, an indictment or information charging such offense may follow the language of the statute. State v. Patton, 159 Ind. 248.

1811. Indictment, form.-170. The indictment may be substantially in the following form:

an offense).

........

day of

in the State of Indiana (here set forth the act charged as

See notes to section 1801, Burns' R. S. 1901.

1812. Affidavit, form.-171. The affidavit may be substantially in the same form as that given for an indictment, substituting for the words, "the grand jury of the county of ..... ...., upon their oath do present" the following: "C D, being duly sworn on his oath, says." It shall not be necessary in an affidavit to state the reason why the proceeding is by affidavit instead of indictment. And in any prosecution by affidavit, it shall not be necessary to prove the facts showing the right so to prosecute by affidavit, unless such facts are put in issue by a verified plea in abatement.

See notes to section 1802, Burns' R. S. 1901.

When a felony is prosecuted by information, the facts conferring the right to prosecute by information need not be proven unless such right is put in issue by a plea in abatement. Klein v. State, 157 Ind. 146.

1813. Amendment of affidavit.-172. The affidavit may be amended in matter of substance or form at any time before the defendant pleads. When the affidavit is amended it shall be sworn to. No amendment of the affidavit shall cause any delay of the trial, unless for good cause shown.

See notes to section 1804, Burns' R. S. 1901.

1814. Construction.-173. The words used in an indictment or affidavit must be construed in their usual acceptation, in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.

See notes to section 1805, Burns' R. S. 1901.

1815. Charging the offense.-174. Words used in the statute to define a public offense need not be strictly pursued, but other words conveying the same meaning may be used.

See notes to section 1806, Burns' R. S. 1901.

1816. Statement of time.-175. The precise time of the commission of an offense need not be stated in the indictment or affidavit, but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense; and when, with reference to a particular day, the words "on or about" are used, the last two words "or about" shall be regarded as mere surplusage. See notes to section 1807, Burns' R. S. 1901.

1817. What need not be stated.-176. Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment or affidavit.

See notes to section 1808, Burns' R. S. 1901.

1818. Judgment-How pleaded.-177. In pleading a judgment or other determination of a court or officer of special jurisdiction, it is sufficient to allege generally that the judgment or determination was duly made or had before such court or officer; but the facts constituting the jurisdiction must be established on the trial.

See notes to section 1809, Burns' R. S. 1901.

1819. Private statute-How pleaded. 178. In pleading a private statute of this state, or a right derived therefrom, it is sufficient to refer to the statute by its title and the day of its approval, and the court must take judicial notice thereof.

1820. Wrong name of accused.-179. If the defendant be accused by a wrong name, unless he declare his true name before pleading, he shall be proceeded against by the name in the indictment or affidavit. See notes to section 1811, Burns' R. S. 1901.

1821. Name-Entry of record. 180. If he allege that another name is his true name, it must be entered in the minutes of the court, and the subsequent proceedings on the indictment or affidavit may be had against him by that name, referring also to the name by which he is accused.

1822. Separate counts.-181. The felony or misdemeanor may be charged in separate counts of the indictment, or affidavit, to have been committed by different means.

See notes to section 1813, Burns' R. S. 1901.

When a prosecution is commenced by affidavit and information, there may be separate counts in which the offense is charged to have been committed by different means or in different ways. Diehi v. State, 157 Ind. 549; State v. Balsley, 159 Ind. 395.

1823. Joinder of counts.-182. Counts for murder in the first and second degree, and for manslaughter, may be joined in the same indictment, and on the trial the defendant may be convicted of either offense. See notes to section 1814, Burns' R. S. 1901.

1824. Second degree murder-Manslaughter.-183. In an indictment for murder in the second degree, or in an indictment or affidavit 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 in an indictment for murder in the second degree, to charge that the defendant did purposely and maliciously, but without premeditation; and in an indictment for affidavit for manslaughter, that the defendant did unlawfully kill the deceased.

See notes to section 1815, Burns' R. S. 1901.

1825. Perjury or subornation.-184. In an indictment or affidavit for perjury or subornation of perjury, it shall be necessary to set forth only the substance of the controversy or the matter in respect to which the crime was committed, and in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with the proper averments to falsify the matter whereof the perjury may be assigned, without setting forth any part of any record or proceeding, or the commission or authority of the court or other authority before which the perjury was committed. And in an indictment or affidavit for perjury in swearing to any written instrument, it shall only be necessary to set forth that part of the instrument alleged to have been falsely sworn to, and to negative the same, with the name of the officer or court before whom the instrument was sworn to.

See notes to section 1816, Burns' R. S. 1901.

1826. Larceny-Joinder of counts.-185. An indictment or affidavit for larceny may contain a count for obtaining the same goods by burglary, for obtaining the same goods by robbery, and for obtaining the same property by false pretense, a count for embezzlement thereof, and a count for receiving or concealing the same property, knowing it to have been stolen, or any of such counts, and the accused may be convicted of either offense, and the court or jury trying the cause may find all or any of the persons accused guilty of any of the offenses charged. See notes to section 1817, Burns' R. S. 1901.

Counts for larceny and embezzlement may be joined in the same indictment. State v. Balsley, 159 Ind. 395.