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407. EVIDENCE. 85. The grand jury may find an indictment 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.

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:

STATE OF ILLINOIS, 88.
County.

Of the term of the...... circuit court, in the year of our Lord 18..

The grand jurors chosen, selected and sworn, in and for the county of......, in 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 com. mitting the same, with reasonable certainty.)

R. S. 1845, p. 181, § 162.

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 dut, 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 prosecu tion 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 judgment 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 prosecu tor 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 procure ment 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.

411. NO INDICTMENT QUASHED FOR WANT OF FORM] § 9. 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 indict ment shall be quashed for want of the words, "with force and arms," or of the oc cupation or place of residence of the accused, nor by reason of the disqualification of any grand juror. [R. S. 1845, p. 181, § 163.

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 be fore 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 of fender to an attachment as for contempt of court, in which he may be fined not exceeding $500.

413. RECORDING INDICTMENTS.] § 11. The judge of the court 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.] § 1. 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. When the court orders process against the accused returnable forthwith, the amount of bail need not be fixed until the accused is brought into court. [R. S. 1845, p. 183, § 175.

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 is. sue to different counties at the same time. [R. S. 1845, p. 183, § 176.

416. AMOUNT OF BAIL INDORSED ON WRIT.] § 3. When not otherwise ordered by the court, the clerk shall indorse on the process the amount of bail required by the order of the court, but when the court shall order the process returnable immediately, such indorsement shall not be made, but the capias shall require the accused to be arrested and brought immediately to court. [R. S. 1845, p. 183, § 176.

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. [R. S. 1815, p. 183, § 176.

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.] 87. 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 ap proved by the officer.

DIVISION XIII.

ARRAIGNMENT-TRIAL-DISCHARGE.

421. COPY OF INDICTMENT.] § 1. Every person charged with treason, mur. der or other felonious crime, shall be furnished, previous to his arraignment, with

a copy of the indictment, and 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.

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.

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.

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.

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 executiou 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 crimi nal 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.

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 court. And attachments against witnesses who live in a different county from that where such subpena is returnable, may be served in the same manner as capiases are directed to be served out of the county from which they issue. [R. S. 1845, p. 184, § 177.

428. MODE OF PROCEDURE.] § 8. All trials for criminal offenses shall be conducted according to the course of the common law, except when this act points out a different mode, and the rules of evidence of the common law shall also be binding upon all courts and juries in criminal cases except as otherwise provided by law. [R. S. 1845, p. 186, § 188.

429. CERTAIN PRIVILEGES ABOLISHED.] § 9. The benefit of clergy, appeals of felony, and trials by battle are forever abolished. [R. S. 1845, p. 182, § 172.

430. TRIAL DE MEDIATATE LINGUA. § 10. In no case shall the right to a trial by a jury de mediatate lingua be allowed in criminal prosecutions. [R. S. 1845, p. 185, § 185.

431. JURIES JUDGES OF LAW AND FACT.] § 11. Juries in all criminal cases shall be judges of the law and the fact. [R. S. 1845, p. 186, § 188.

432. CHALLENGES.] § 12. Every person arraigned for any crime punishable with death or imprisonment in the penitentiary for life shall be admitted on his trial to a peremptory challenge of twenty jurors, and no more; and every person arraigned for any offense that may be punished by imprisonment for a term exceeding eighteen months, shall be admitted to a peremptory challenge of ten jurors; and in all other criminal trials, the defendant shall be allowed a peremptory challenge of six jurors. The attorney prosecuting on behalf of the people shall be admitted to a peremptory challenge of the same number of jurors that the accused is entitled to. [R. S. 1815, p. 185, § 184; L. 1869, p. 362, § 1.

433. CHALLENGES IN TRIAL FOR MURDER.] § 13. In trials for murder it shall be a cause for challenge of any juror who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same. [L. 1869, p. 113, § 4.

434. PROLONGATION OF SESSION.] § 14. The court in which a trial for a criminal offense is pending may continue in session until the verdict is rendered and judgment entered, notwithstanding the judge may be required by law to hold court in another county before the conclusion of such trial. [L. 1859, p. 47, § 1. 435. OFFICER SWORN TO ATTEND JURY.] § 15. When the jury retire to consider of their verdict in any criminal 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, in 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 such jury. [R. S. 1845, p. 186, § 189. 436. PENALTY.] § 16. 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 or imprisonment, or both, in the discretion of the court. [R. S. 1845, p. 186, § 190.

437. EXCEPTIONS.] § 17. Exceptions may be taken in criminal cases, and bills of exceptions shall be signed and sealed by the judge, and entered of record, and error may be assigned thereon by the defendant, the same as in civil cases: Provided, that in no criminal case shall the people be allowed an appeal, writ of error or new trial. [R. S. 1845, p. 183, § 197; L. 1857, p. 28, § 1, p. 103, $1.

433. DISCHARGED FOR WANT OF PROSECUTION.] § 18. Any person committed for a criminal or supposed criminal matter, and not admitted to bail and not tried at or before the second term of the court having jurisdiction of the of fense, shall be set at liberty by the court, unless the delay shall happen on the ap plication of the prisoner. If such court, at the second term, shall be satisfied that due exertions have been made to procure the evidence for and on behalf of the people, and that there are reasonable grounds to believe that such evidence may be procured at the third term, it shall have power to continue such case till the

third term. If any such prisoner shall have been admitted to bail for a crime other than a capital offense, the court may continue the trial of said cause to a third terin, if it shall appear by oath or affirmation that the witnesses for the people of the state are absent, such witnesses being mentioned by name, and the court shown wherein their testimony is material. [R. S. 1845, p. 272, § 9.

DIVISION XIV.

JUDGMENT AND EXECUTION THEREOF.

439. DEATH PENALTY-MANNER OF INFLICTING.] 1. The manner of inflicting the punishment of death shall be by hanging the person convicted, by the neck until dead, at such time as the court shall direct, not less than fifteen nor more than twenty-five days from the time sentence is pronounced: Provided, the day set shall not occur before the tenth day of the term of the supreme court occurring (in either of the grand divisions) next after the pronouncing of the judg ment: And, provided, that for good cause the court or governor may prolong the time. At the expiration of the time so prolonged, the judgment shall be executed the same as if that were the time fixed by the judgment for the execution thereof. [R. S. 1845, p. 181, § 166.

440. PLACE OF INFLICTING.] §2. Whenever any person shall be condemned to suffer death by hanging, for any crime of which such person shall have been convicted in any court of this state, such punishment shall be inflicted within the walls of the prison of the county in which such conviction shall have taken place, or within a yard or enclosure adjoining such prison. [L. 1859, p. 17, § 1.

441. DUTY OF SHERIFF AT EXECUTION.] § 3. It shall be the duty of the sheriff, or the deputy sheriff of the county, to be present at such execution, and, by at least three days' previous notice, to invite the presence of the judges, pros ecuting attorney, and clerks of the courts of said county, together with two phy sicians and twelve reputable citizens, to be selected by said sheriff or his deputy. And the said sheriff or deputy shall, at the request of the criminal, permit such ministers of the gospel, not exceeding three, as said criminal shall name, and any of the immediate relatives of said criminal, to be present at said execution, and also such officers of the prison, deputies and constables as shall by him be deemed expedient to have present; but no other persons than those herein mentioned shall be permitted to be present at such execution, nor shall any person, not a relative of the criminal, under the age of twenty-one years, be allowed to witness the same. [L. 1859, p. 17, § 2.

442. CERTIFICATE OF EXECUTION.] § 4. The sheriff or his deputy, or the judges attending such execution, shall prepare and sign, officially, a certificate, setting forth the time and place thereof, and that such criminal was then and there executed, in conformity to the sentence of the court and the provisions of this act; and shall procure to said certificate the signatures of the other public officers and persons, not relatives of the criminal, who witnessed such execution; which certificate shall be filed with the clerk of the court where the conviction of such criminal was had. [L. 1859, p. 17, § 3.

443. DISPOSITION OF BODY.] § 5. The court may order, on the application of any respectable surgeon or surgeons, that the body of the convict shall, after death, be delivered to such surgeon or surgeons for dissection, unless the same be objected to by some relative of the convict. [R. S. 1845, p. 182, § 167. 444. PENALTIES DETERMINED BY JURY-PENITENTIARY.] § 6. In all cases where the punishment shall be confinement in the penitentiary, if the case is tried by a jury, the jury shall say in their verdict for what time the offender shall be confined, and the court, in pronouncing sentence, shall designate what portion of time the offender shall be confined to solitary imprisonment, and what portion to hard labor. [See § 142, 146. R. S. 1845, p. 182, § 168.

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