and shall deliver such certificate to the sheriff, who shall deliver the same, together with the warrant aforesaid and the condemned, to the warden, who shall receipt to the sheriff for the same, and proceed at the appointed time to carry the sentence of death into execution, as provided in this act.

1879 Escape from state prison. § 8. If the condemned person escapes after his delivery to the warden, and be not retaken before the time appointed for his execution, any person may arrest him and commit him to the proper state prison, whereupon the warden shall certify the fact of his escape and recapture to the court in which sentence was passed, and thereupon the court shall again appoint a time for the execution, which shall be not less than thirty days from the date of such appointment, and thereupon the clerk of said court shall certify such appointment to the warden of the state prison, who shall proceed at the time so appointed to execute the condemned as herein before provided.

1880 Respite etc.-Reversal of judgment. $ 9. When execution of sentence is suspended or respited to another day the same shall be noted on the warrant, and on the arrival of such day the warden shall proceed with such execution, and in case of the death of any condemned person before the time for his execution arrives, or his pardon, or the commutation of his sentence by the governor, or the reversal of the judgment of conviction, no execution shall be had, but in all such cases, as well as when the sentence is executed, the warden shall return the warrant and certificate, with his proceedings properly indorsed thereon, to the clerk of the court in which sentence was passed, who shall record said warrant and return in the record of the cause.

1880a. Female pregnant Inquest. § 10. If a female defendant sentenced to death appears to be pregnant, and the physician of the state prison shall certify in writing to the warden that in his opinion such female is pregnant, the warden shall forthwith give notice to the judge of the circuit court of the county in which said prison is located, and shall also deliver a copy of such certificate of such physician to said judge, who shall thereupon appoint a time at which an inquiry into said pregnancy shall be had at the state prison, and the sheriff of said county shall thereupon summon a jury of six impartial mer to meet at such state prison on the appointed day for such inquiry, and shall also give immediate notice to the prosecuting attorney of such county of the time and place of such inquiry.

1880b. Inquest - Officials present - Record - Finding. § 11. The judge, prosecuting attorney and clerk of said circuit court shall attend said inquiry, and the clerk shall keep a record of the proceedings. Witnesses may be produced and examined before the jury. The findings shall. be in writing, signed by the foreman of the jury and filed in the office of the clerk of the county in which such state prison is located.

1880c. Suspension of execution - New warrant, when. § 12. If it appears by such finding that such female prisoner is with child the warden shall suspend the execution of her sentence, and shall transmit a copy of such finding and of the record of the proceedings had before such jury, duly certified by such clerk, under the seal of said court, to the governor, who, on being satisfied that such woman is no longer pregnant, shall issue a warrant appointing a day for her execution.

1880d. Warden's fee. § 13. The warden conducting the execution shall be allowed therefor the sum of fifty dollars, to be paid him out of the treasury of the county in which judgment of execution was rendered, and the auditor of such county shall draw his warrant for said sum, payable to said warden upon the certificate of the clerk of said county, showing the return by said warden of the death warrant, with execution of sentence indorsed thereon.

ARTICLE 20-JUDGMENT.

1850. When pronounced. An error of the trial court in imposing a penalty not assessed by the jury nor authorized by the statute defining the offense, of which defendant is found guilty, is not available, on appeal, unless the question was raised in the trial court, by an objection in some form to the judgment; Skaggs v. State, 108-61.

1860. Stay. Under the code of 1852 (2 Rev. Stats., 1876, p. 407) the entry of replevin bail, as well as payment, terminated the power to imprison under a judgment of conviction; Dinckerlocker v. Marsh, 75-551.

2. Where fines and costs have been assessed against a licensed liquor vendor, for a violation of the provisions of the liquor law, and his replevin bail has been compelled to pay and has paid such fines and costs, such bail may be subrogated to the rights of the state in the licensee's bond and may recover thereon the amount by him so paid, with interest and costs (sect. 1214); Kane v. State, 78-107.

1863-4. Stay of fine-Arrest. These sections do not conflict with section 59, but do conflict with section 69 of the bill of rights (ante) and are void, so far as they attempt to restore a right to imprison where that right has been fully terminated by the entry of replevin bail; Dinckerlocker v. Marsh, 75-551.

1872. Death penalty. This section, as to the death penalty, is mandatory and the connection in which it is found adds emphatically to its force. No power, save that of the law makers, can alter the rule nor can a condemned man shorten his own life by consenting that he may be hanged at an earlier day than that prescribed by an imperative law; nor can he, by consent or agreement, make it proper to hang him in a manner, or at a time different from that prescribed by a plain and positive statThe statute provides that a man condemned to death shall he hung. No agreement, express or implied, would authorize a court to change the mode of inflicting death to poisoning, beheading or shooting. So, too, the statute prescribes how the execution shall be conducted and the consent of the condemned man would not authorize the court to adjudge that it should be conducted in a manner differing from that prescribed. A man can be executed, only, according to law and this rule must extend to time, place and manner: Koerner v. State, 96–244.

ute.

1881. To Supreme Court. 303, An appeal to the Supreme Court may be taken by the defendant as a matter of right, from any judgment in a criminal action against him, in the manner and in the cases prescribed herein; and, upon the appeal, any decision of the Court or intermediate order made in the progress of the case may be reviewed.

1882. By State-Causes. 304. Appeals to the Supreme Court may be taken by the State in the following cases, and no other:

First. Upon a judgment for the defendant, on quashing or setting aside an indictment or information.

Second. Upon an order of the Court arresting the judgment.
Third. Upon a question reserved by the State.

1. A defendant may appeal from a judgment on a plea of guilty, and, in the Supreme Court, attack the sufficiency of the indictment for the first time.— Arbintrode v. State, 67 Ind. 267.

2. Whatever is cause for new trial can not be assigned independently as error.— Wagner v. State, 63 Ind. 250.

1883. Transcript on appeal by State. 305. In case of an appeal from a question reserved on the part of the State, it shall not be necessary for the Clerk of the Court below to certify, in the transcript, any part of the proceedings and record except the bill of exceptions and the judgment of acquittal. When the question reserved is defectively stated, the Supreme Court may direct any part of the proceedings and record to be certified to them.

1884. Effect when State appeals. 306. An appeal taken by the State in no case stays or affects the operation of the judgment in favor of the defendant, until the judgment is reversed.

1885. Appeal when. 307. All appeals must be taken within one year after the judgment is rendered, and the transcript must be filed within ninety days after the appeal is taken.

I. When a transcript is incomplete, owing to the loss of original papers, and, therefore, can not be made perfect by certiorari, the Supreme Court will not pass on any question concerning which the transcript is so defective.- Kennedy v. State, 66 Ind. 370.

2. It is the duty of the Clerk, upon appeal by the defendant, to furnish him a transcript without the pre-payment of fees therefor.- State v. Wallace, 41 Ind. 445. 3. A motion to dismiss, because the transcript is filed too late, is waived by joinder in error.- State v. Walters, 64 Ind. 226.

1886. Any defendant may appeal. 308. When several defendants are tried jointly, any one or more of them may take an appeal; but those who do not join in the appeal shall not be affected thereby.

1887. How taken. 309. An appeal by the State is taken by the service of a written notice upon the Clerk of the Court where the judgment was rendered, stating that the appellant appeals to the Supreme Court from the judgment; and a similar notice must be served upon the defendant or his attorney; if neither can be found, then by posting up such notice three weeks in the Clerk's office, in a conspicuous place. If the appeal is taken by the defendant, a similar notice must be served upon the Prosecuting Attorney. The parties may waive such written notice, or enter, in writing, their appearance to such appeal.

1888. By defendant. 310. An appeal to the Supreme Court from a judgment of conviction does not stay the execution of the sentence, except where the punishment is to be death, or the judgment is for a fine or a fine and costs only; in which cases the execution of the sentence may be stayed by an order of the Supreme Court or a Judge thereof. Where the punishment is to be imprisonment, with a fine and costs also, the execution of the sentence as to the fine, or the fine and costs only, may in like manner be stayed. In the case of an appeal from a judgment in a capital case, the order of suspension shall specify the day unto which the execution of the sentence is stayed.

1889. Trial of appeal. 311. An appeal shall stand for trial immediately after filing the transcript and the notice of appeal, if the Supreme Court is in session; if not in session, at the next term thereof. Appeals from judgments, in capital cases, shall have the precedence of all others. 1890. Informality not ground for dismissal. 312. An appeal shall not be dismissed for any informality or defect in taking an appeal, if the same be corrected in a reasonable time. After an appeal has been dismissed, another appeal may be taken within the year. 1891. To disregard technical errors.

313. In the consideration of the questions which are presented upon an appeal, the Supreme Court shall not regard technical errors or defects or exceptions to any decision or action of the Court below, which did not, in the opinion of the Supreme Court, prejudice the substantial rights of the defendant.

1. The admission of improper evidence, which from its nature would not harm the defendant, is not available error.- Binns v. State, 66 Ind. 428. So any error favorable to the party complaining.-Id.

1892. Power of Supreme Court. 314. The Supreme Court may reverse, modify, or affirm the judgment appealed from, and may, if necessary or proper, order a new trial. In either case, the cause must be at once remanded to the Court below, with proper instructions, and the opinion of the Supreme Court shall also be immediately certified to the Court below.

I. Where the verdict assessed, in addition to what is lawful, a punishment unauthor ized by law, the Court should disregard the latter, and render judgment accordingly; and, on appeal by the defendant, the Supreme Court will affirm except as to the unauthorized punishment, and reverse as to that, and direct the Court below accordingly. Kennedy v. State, 62 Ind. 136.

1893. Rehearing. 315. A rehearing in criminal cases may be allowed as in civil cases.

1894. Opinion must be written and recorded. 316. All opinions of the Supreme Court in criminal prosecutions must be given in writing and recorded in the order-book.

1895. Judgment of Supreme Court. 317. When a judgment

against the defendant is reversed, and it appears that no offense whatever has been committed, the Supreme Court must direct that the defendant be discharged; but if it appear that the defendant is guilty of an offense, although defectively charged in the indictment or information, the Supreme Court must direct the Warden of the State prison, or the chief officer in charge of the penal or reformatory institution in which the defendant is confined, to cause the prisoner to be delivered over to the jailer of the proper county, there to abide the order of the Court in which he was convicted.

1896. Affirmance. 318. On a judgment of affirmance against the defendant, the original judgment must be carried into execution as the appellate Court may direct.

[1881 S., p. 114. In force September 19, 1881.]

1897. Corporations punishable. 319. Corporations may be prosecuted by indictment or information, for erecting, continuing, or maintaining a public nuisance, or for obstructing a public highway or a navigable stream. 1898. Definitions. 320. All definitions of the terms in the Act prescribing the rules for pleading and practice in civil actions are adopted in this Act, so far as the same are applicable.

1899. "Person" defined. 321. When the term "person," or other word, is used to designate the party whose property is the subject of an offense, or against whom any act is done, with intent to defraud or injure, the term may be construed to include the United States or any foreign government, this State or any other State, Territory, or any public or private corporation.

1900. Laws and usages continued. 322. The laws and usages of this State relative to pleading and practice in criminal actions not inconsistent herewith, so far as the same may operate in aid thereof or supply any omitted case, are hereby continued in force.

1. A cause being on trial at the close of the term, the Court may extend its sitting until the cause is ended, under section 1380.-- Wright v. State, 5 Ind. 290. But it is held in Morgan v. State, 12 Ind. 448, that, in such case, the Court must continue to sit until twelve o'clock, P. M., of the last day of the term.

1901. Repealing and saving clauses. 323. An Act entitled "An Act to revise, simplify, and abridge the rules, practice, pleadings, and forms in criminal actions in the Courts of this State," approved June 17, 1852, and all other laws within the purview of this Act, and inconsistent with the provisions thereof, are hereby repealed; but this repeal shall not affect any prosecutions pending under existing laws; and such prosecutions shall be continued to a final termination under the provisions of this Act.

1. The Criminal Code and the act defining public offenses, through approved on different days, took effect simultaneously, and are to be construed in pari materia. They took effect September 19, 1881.-Sanders v. State, 77–228.