through or along or into which such railroad car or water-craft may pass or come, or can reasonably be determined to have been on or near the day when the offense was committed.

DIVISION XI.

PROCEEDINGS BEFORE GRAND JURY-INDICTMENT. 403. Sittings of grand jury. SEC. 1. The grand jury, having been impaneled and instructed by the court, shall retire to their room to consider such matters as may be brought before them. The court shall designate an officer to attend upon their sessions.

404. Presentments. § 2. Grand juries shall present all offenses cognizable by the court at which they attend, and may appoint one of their number to take minutes of their proceedings, to be delivered to the prosecuting attorney, if the jury so directs.

405. May be summoned after adjournment. § 3. If they are dismissed before the court adjourns, they may be summoned again on any special occasion, at such time as the court directs.

[Stone v. People, 2 Scam. 326.

406. Witnesses.

4. In all complaints exhibited before the grand jury of any county, they shall hear the witnesses on behalf of the people only.

[R. S. 1845, p. 186. § 187; Gardner v. People, 3 Scam. 83; Gates v. People, 14 Ill. 436; McKinney v. People, 2 Gilm. 552.

407. Evidence.

5. The grand jury may find an indictment

[*408] on the oath of one or more witnesses, except that in cases of

treason or perjury, at least two witnesses to the same fact shall be deemed necessary, except where the fact is proved by some writing ; or they may make presentment upon information of not less than two of their own body, unless the juror giving the information is sworn as a witness, in which case his evidence shall be considered the same as that of any other witness. 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.

[See "Jurors," ch. 78, § 19; R. S. 1845, P. 309, § 5, p. 186, § 187; Music v. People, 40 Ill. 272; Brennan v. People, 15 Ill. 515.

408. Form of indictment. § 6. Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense 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, etc. (here insert the offense, and time and place of committing the same, with reasonable certainty.)

[R. S. 1845, p. 181, § 162; Keedy v. People, 84 Ill. 569; Dyer v. People, 84 Ill. 624;

Beasley. People, 89 Ill. 571; McNair v. People, 89 Ill. 443; Miller v. People, 2 Scam. 23;; Eells v. People, 4 Scam. 498; Mohler v. People, 24 III. 26; Morton v. People, 47 Ill. 468; Curtis v. People, Breese, 258; Morrell v. People, 32 Ill. 502; Lequat v People, Ill. 330; Metzker v. People, 14 Ill. 101; Conolly v. People, 3 Scam. 476; Whitesides v. People, Breese, 21; Nichols v. People, 40 III. 396: Townsend v. People, 3 Scam, 329; Duncan v. l'eople, 1 Scam. 457; Noe v. People, 39 Ill. 96; Hay v. People, 59 II. 94; Bell v. People, 1 Scam. 397; Willis v. People, 1 Scam. 401; Wallace v People, 63 Ill. 451; Durham v. People, 4 Scam. 174; Vandermark v. People, 47. 124; Miller y. People, 39 Ill. 458; Clark v. People, 1 Scam. 120; Town of Pariseople, 27 Ill. 74; Lyons v. People, 68 III. 271; Blemer v. People. 76 Ill. 265; Plummer v. People, 74 Ill. 361; Warriner v. People, 74 I. 346.

409. Prosecutor indorsed — malicious prosecution. $7. No bill of indictment for false imprisonment, or willful 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 judgments for costs against the prosecutor, including a fee of $5 to the attorney-general or State's 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. [R. S. 1845, p. 184, $179.

410. Instrument destroyed. 8. When an instrument, which is the subject of an indictment, has been destroyed or withheld by the act or procurement of the defendant, and the fact of such destruction or withholding is alleged in the indictment and established on trial, the accused shall not be acquitted on account of any misdescription of the instrument so withheld or destroyed.

[Winship v. People, 51 Ill. 296; Vezain v. People, 40 Ill. 397

$ 9.

411. No indictment quashed for want of form. 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 offense charged in the 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.

[R. S. 1845, p. 181, § 163; Winship v. People, 51 Ill. 296: Nomaque v. People, Breese, 145: Morton v. People, 47 Ill. 476; Kelly v. People, 39 Ill. 158; Gardner v. People, 20 Ill. 430: Mohler v. People, 24 Ill. 26; Gardner v. People, 3 Scam, 83; Williams v. People. 54 Ill. 422; Gahan v. People, 58 Ill. 160; Rainey v. People, 3 Gilm. 71; Sattler v. People, 59 Ill. 68; Conolly v. People, 3 Scam. 477; Townsend v. People, 3 Scam. 329: Nichols v. People, 40 Ill. 396; Rice v. People, 38 Ill. 436; Jackson ▼. People, 40 Ill. 405; Schirmer v. People, 33 Ill. 283; Vezain v. People, 40 Ill. 397;

McKinney v. People, 2 Gilm. 540: Yates v. People, 38 Ill. 528; Musick v. People, 40 Ill. 272; Blemer v. People, 76 Ill. 265; R. R. 1. & St. L. R. R. Co. v. McKinley, 64 Ill. 338; Yundt v. People, 65 Ill. 372; Aylesworth v. People, 65 Ill. 301.

412. Disclosures improper. 10. No grand juror or officer of the court or other person shall disclose that an indictment for felony is found, or about to be found, against any person not in custody or under recognizance, except by issuing process for his arrest, until he is arrested; nor shall any grand juror state how any member of the jury voted, or what opinion he expressed on any question before them; and the court, in charging said jury, shall impress upon their minds the provisions of this section. A violation of this section shall subject the offender to an attachment as for contempt of court, in which he may be fined not exceeding $500.

413. Recording indictments. II. The judge of the court [*409] in which any indictment may be found or returned by the grand jury of any county, may order the clerk of his said court in which said indictment is found and returned to copy such indictments, together with all indorsements thereon, at length, upon the records of such court; and in case of the loss or destruction of such original indictment, such copy of the lost or destroyed indictment shall be considered as prima facie evidence of the contents of such original indictment and the party or parties who stand indicted may be tried upon a certified copy from the record of such lost or destroyed indictment. [Act approved April 11, 1873. In force July 1, 1873.

DIVISION XII.

ARREST UPON INDICTMENT — ADMITTING TO BAIL. 414. Order fixing amount of bail. SEC. I. When an indictment is found as a true bill, if the offense is bailable, the court shall make an order fixing the amount of bail to be required of the accused. [As amended June 14, 1887. In force July 1, 1887. L. 1887, p. 166.

415. Capias. 2. The clerk of the court in which the indictment is found shall immediately issue process of capias for the apprehension of each person indicted, directed to the sheriff, coroner or any constable of the county where such person then is or is supposed to be. When deemed necessary, warrants may issue to different counties at the same time. [R. S. 1845, p. 183, § 176.

416. Amount of bail indorsed on writ. 3. When the offense is bailable, the clerk shall indorse on the process the amount of bail required by the order of the court, and if the court orders the process returnable forthwith, the capias shall require the accused to be arrested and brought immediately into court.

417. Service and return of capias - bail. 4. The sheriff, or in case of his absence or inability, the coroner or some one of the constables of the county to which the capias is directed, shall arrest the person named in the warrant, and if the offense is bailable and the writ

is not returnable forthwith, let him to bail, if sufficient bail is offered, or if the offense is not bailable, or sufficient bail is not offered, take his body to the jail of the county where the capias is returnable, and deliver him, together with the capias, to the keeper of the jail, there to remain until discharged in due course of law. If the process is returnable forthwith, the accused shall be immediately brought into court, when he shall be either committed, bailed or tried, as the court may direct; but if the court shall not be in session when the officer makes the arrest, so that the accused may be let to bail in open court, such officer may let him to bail conditional for his appearance on the day to which the court stands adjourned, if sufficient bail is offered. The sheriff or other officer, taking such bail, shall be authorized and required to administer oaths for the purpose of ascertaining the sufficiency of the bail offered. [As amended June 14, 1887. In force July 1, 1887. L. 1887, p. 167.

[R. S. 1845, p. 183, § 176: Welborn. et al. v. People, 76 Ill. 516.

418. Passing through other counties. 5. The officer having the custody of a prisoner may pass through any counties which lie in his route between the place of arrest and the county to which he is taking the prisoner, and may lodge the prisoner in any jail on his route for safe custody, for one night or more, as occasion may require. [R. S. 1845, p. 183, § 176.

419. Costs. § 6. The county where the indictment is found shall pay to the officer his reasonable charges for his services in bringing an offender from another county. [R. S. 1845, p. 183, § 176. 420. Letting to bail. 7. The officer making the arrest shall let the accused to bail, by his entering into recognizance in the form required by law, in the amount specified in the process, with one or more sufficient sureties to be approved by the officer.

Sloan v. People, 23 Ill. 77; Smart v. Cason, 50 Ill. 195; People v. Organ, 27 Ill. 27 ; Waugh v. People, 17 Ill. 561; Welborn v. People, 76 Ill. 516: People v. McKay, 40 1. 387; Sans v. People, 3 Gilm. 327; Vincent v. People, 25 Ill. 500; Chumazero v. People, 18 Ill. 406.

DIVISION XIII.

ARRAIGNMENT-TRIAL-DISCHARGE.

421. Copy of indictment. SEC. 1. Every person charged with treason, murder or other felonious crime, shall be furnished, previous to his arraignment, with a copy of the indictment, and [* 410] a list of the jurors and witnesses. In all other cases he shall, at his request or the request of his counsel, be furnished with a copy of the indictment and a list of the jurors and witnesses.

[R. S. 1845, P. 185, 180; Morton v. People, 47 Ill. 476; McKinney v. People, 2 Gilm. 552.

422. Counsel. § 2. Every person charged with crime shall be allowed counsel, and when he shall state upon oath that he is unable to procure counsel, the court shall assign him competent counsel, who shall conduct his defense. In all cases counsel shall have access to persons confined, and shall have the right to see and consult such persons in private.

[See § 229; Vise v. County of Hamilton, 19 Ill. 79; McKinney v. People, 2 Gilm.

540.

423. Arraignment-plea. 3. Upon the arraignment of a prisoner, it shall be sufficient, without complying with any other form, to declare orally, by himself or his counsel, that he is not guilty; which 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 neglects 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.

[R. S. 1845, p. 185, § 181; Johnson v. People, 22 Ill. 317; Schram v. People, 29 III. 165; Barnes v. People, 18 Ill. 52; Gahan v. l'eople, 58 III. 161; Vandermark v. People, 47 l. 124; McQuoid v. People, 3 Gilm. 80; Gerard v. People, 3 Scam. 363; Lane v. People, Gilm. 305; Dunham v. People, 4 Scam. 172; Freeman v. People, 16 111. 380 Gardner v. People, 20 Ill. 434; Guedel v. People, 43 Ill. 231; Phillips v. People, 55 11. 429; Brennan v. People, 15 Il. 517; Morton v. People, 47 Ill. 468; Aylesworth v. People, 65 Ill. 302; Yundt v. People, 65 Ill. 374; Bedee v. People, 73 Ill. 321.

5

424. Plea of guilty explained. 4. In cases where the party pleads “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 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 had been found guilty by a jury. In all cases where the court possesses 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 offense.

[R. S. 1845, P. 185, § 183; Sellers v. People, 1 Gilm. 185.

425. Standing mute. § 5. In all cases where the party on being arraigned obstinately stands mute or refuses to plead, 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." [R. S. 1845, p. 185, § 182.

426. Disqualifications removed. § 6. No person shall be disqualified as a witness in any criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility; Provided, however, that a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.

[R. S. 1845, p. 153, § 15; Const., art. 2, § 10; Creed v. The People, 8: Ill. 567; Myers v. People, 26 Ill. 175; Gray v. People, 26 Ill. 346: Cross v. People, 47 Ill. 158; Rafferty v. People, 66 Ill. 118; St. Charles y. O'Mailey, 18 Ill. 412; Baxter v. People, 3 Gilm. 368; Yoe v. People, 49 Ill. 410; Weldon v Birch, 12 Ill. 376; Miner v. People, 58 Ill. 60; Brennan v. People, 15 11. 516; Crabtree v. Hagenbaugh, 25 Ill. 240 Gates v. People, 14 Ill. 438; Pope v Dodson, 58 Ill. 360; Gibbons y. People, 23 Ill. 519; Coughlin v. People, 18 Ill. 266; Rockwood v. Poundstone, 38 Ill. 201: Frizell v. Cole, 42 Ill. 362; Earll v. People, 73 Ill. 330; Rafferty v. People, 72 Ill. 38; Otmer v. People, 76 Ill. 149; Peak v. People, 76 II. 289; Roach v. People, 77 Ill. 26; Stolp v. Blair, 68 Ill. 541.

427. Subpenas. 7. It shall be the duty of the clerk of the court to issue subpenas, either on the part of the people or of the accused, directed to the sheriff, coroner, or any constable of any county of this State. And every witness who shall be duly subpenaed, and shall neglect or refuse to attend any court, pursuant to the requisitions of such subpena, shall be proceeded against and punished for contempt of the