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CHAPTER CXIII.

CHANGE OF VENUE IN CRIMINAL CASES.

SECTION.
1. Place of trial of criminal causes-change of
venue, when allowed-but one change al-
lowed.

2 Proceedings when venue is changed-costs.
8. Recognizance required on change of venue-

SECTION.

defendant to be committed-when and to what fail. Witnesses for state to recognize.

5. Change of venue on application by state.

§ 1. Place of trial-change of venue. All criminal causes shall be tried in the county where the offence was committed, except where otherwise provided by law, unless it appears to the satisfaction of the court, by affidavit, that a fair and impartial trial can not be had in such county, in which case the court before whom the cause is pending, if the offence charged in the indictment is punishable with death or imprisonment in the state prison, may direct the person accused to be tried in some other county, in the same or any other judicial district in the state, where a fair and impartial trial can be had; but the party accused is entitled to a change of venue but once, and no more. (As amended 1870, c. 75, § 1.)

16 M. 282.

§ 2. Proceedings when venue is changed-costs. When the venue is changed to another county in a criminal case, the trial shall be conducted in all respects as if the indictment had been found in the county to which the venue is changed; and the costs, accruing from a change of venue shall be paid by the county in which the offence was committed. (As amended 1870, c. 75, § 2.)

§ 3. Recognizance required, when-warrant issued, when. When the court has ordered a change of venue, it shall require the accused, if the offence is bailable, to enter into a recognizance, with good and sufficient sureties, to be approved by the court or judge, in such sum as the court or judge may direct, and conditioned for his appearance in the court to which the venue is changed, at the first day of the next term thereof, and to abide the order of such court; and in default of such recognizance, or if the offence is not bailable, a warrant shall be issued, directed to the sheriff, commanding him safely to convey the prisoner to the jail of the county where he is to be tried, there to be safely kept by the jailor thereof until discharged by due course of law.

§4. Witnesses shall give recognizance to appear. When a change of venue is allowed, the court shall recognize the witnesses on the part of the state to appear be fore the court in which the prisoner is to be tried.

§ 5. State may have change of venue-proceedings. The attorney on behalf of the state may also apply for a change of yenue, and the court, being satisfied that it will promote the ends of justice, may award a change of venue, upon the same terms and to the same extent that are provided in this chapter; and the proceedings on such change of venue shall be in all respects as above provided.

15 M. 344.

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§1. Issue of fact arises, when. An issue of fact arises: First. Upon a plea of not guilty; or,

Second. Upon a plea of a former conviction or acquittal of the same offence.

§ 2. Same to be tried by jury. An issue of fact shall be tried by a jury of the county in which the indictment was found, unless the action is removed, by order of the court, as provided in the preceding chapter.

§ 3. Defendant to appear in person, when. If the indictment is for a misdemeanor, the trial may be had in the absence of the defendant, if he appears by counsel; but if for a felony, he shall be personally present.

§4. Continuance-affidavits to be filed. When an indictment is called for trial, or at any time previous thereto, the court may, upon sufficient cause shown by either party, direct the trial to be postponed to another day in the same term, or to another term; the affidavits read upon the application shall at the same time be filed with the clerk.

§ 5. Defendant to be committed, when. When a defendant, who has given bail, appears for trial, the court may, in its discretion, at any time after his appearance for trial, order him to be committed to the custody of the proper officer of the county, to abide the judgment or further order of the court.

§ 6. Separate trial of defendants jointly indicted. When two or more defendants are jointly indicted for a felony, any defendant requiring it shall be tried sepa rately; in other cases, defendants jointly indicted may be tried separately or jointly, in the discretion of the court.

§ 7. Discharge of a joint defendant-to become witness for state. When two or more persons are included in the same indictment, the court may, at any time before the defendant has gone into his defence, on the application of the district attorney, direct any defendant to be discharged from the indictment, that he may be a witness for the state.

4 M. 340, (438.)

$8. Same to become witness for his codefendants. When two or more persons are included in the same indictment, and the court is of the opinion that, in regard to a particular defendant, there is not sufficient evidence to put him on his defence, it shall order him to be discharged from the indictment, before the evidence is closed, that he may be a witness for his codefendant; the order is an acquittal of the defendant discharged, and a bar to another prosecution for the same offence.

§ 9. Juror to testify as to facts within his knowledge. If a juror has any personal knowledge respecting a fact in controversy in a cause, he shall declare it in open court, during the trial: if, during the retirement of a jury, a juror declares a fact which could be evidence in the cause, as of his own knowledge, the jury must return into court; in either of these cases, the juror making the statement shall be sworn as a witness, and examined in the presence of the parties. § 10. View. The court may order a view by any jury impanelled to try a criminal case.

19 M. 271.

§ 11. Questions of law and fact, how decided. On the trial of an indictment for any offence, questions of law are to be decided by the court, except in cases of libel, saving the right of the defendant to except. Questions of fact, by the jury; and although the jury have the power to find a general verdict which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court.

*§ 12. Order of argument. When the evidence is concluded upon the trial of any indictment in the district courts or courts of common pleas in this state, unless the cause is submitted on either or both sides without argument, the plaintiff shall commence, and the defendant shall conclude, the argument to the jury. (1875, c. 41, § 1.)

23 M. 144.

§ 13. (SEC. 12.) Charge of court. In charging the jury, the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict; and, if it presents the facts of the case, shall, in addition to what it may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact.

3 M. 181 (262); 329 (444); 16 M. 109.

§ 14. (SEC. 13.) Jury, how kept while deliberating. After hearing the charge, the jury may either decide in court, or may retire for deliberation; if they do not agree without retiring, one or more officers shall be sworn to take charge of them; they shall be kept together in some private and convenient place, without food or drink, except bread and water, unless otherwise ordered by the court, and no person shall be permitted to speak to or communicate with them, unless it is by order of the court, nor listen to their deliberations; and they shall be returned into court when they have so agreed, or when ordered by the court.

16 M. 178.

§ 15. (SEC. 14.) What papers may be taken to the jury room. Upon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause, or copies of such parts of public records or private documents, given in evidence, as ought not, in the opinion of the court, to be taken from the person having them in possession; they may also take with them notes of the testimony or other proceedings on the trial, taken by themselves, or any of them, but none taken by any other person.

§ 16. (SEC. 15.) Jury may return into court for information. After the jury have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed of a point of law arising in the cause, they shall require the officer to conduct them into court. Upon their being brought into court, the information required shall be given in the presence of, or after notice to. the prosecuting officer, and the defendant or his counsel.

3 M. 181 (262.)

§ 17. (SEC. 16.) Discharge of jury without verdict. If, after the retirement of the jury one of them becomes so sick as to prevent the continuance of his duty, or if they are unable to agree upon a verdict, or any other accident or cause occurs to prevent their being kept together for deliberation, the jury may be discharged by the court.

§ 18. (SEC. 17.) Same-second trial. In all cases where a jury are discharged or prevented from giving a verdict, by reason of accident, disagreement, or other cause, except when the defendant is discharged from the indictment during

the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term.

$19. SEC. 18.) Verdict in certain cases. Upon an indictment for an offence consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto; upon an indictment for any offence, the jury may find the defendant not guilty of the commission thereof, and guilty of an attempt to commit the same; upon an indictment for murder, if the jury find the defendant not guilty thereof, they may, upon the same indictment, find the defendant guilty of manslaughter in any degree. In all other cases, the defendant may be found guilty of any offence, the commission of which is necessarily included in that with which he is charged in the indictment.

3 M. 313 427); 4 M. 237 (321); 6 M. 190 (279); 8 M. 190 (220); 16 M. 75; 21 M. 382; 22 M. 238. § 20. (SEC. 19.) Verdict as to some joint defendants and disagreement as to others. On an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly; and the case as to the rest may be tried by another jury.

$21. (SEC. 20.) Polling jury-further deliberation, when. When a verdict is rendered and before it is recorded, the jury may be polled, on the requirement of either party, in which case they shall be severally asked whether it is their verdict; and if any one answer in the negative, the jury shall be sent out for further deliberation.

§ 22. (SEC. 21.) Proceedings on reception of verdict. When a verdict is given, such as the court may receive, the clerk shall immediately record it in full on the minutes, and read it to the jury, and inquire of them whether it is their verdict; and if any juror disagrees, the fact shall be entered upon the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict

is complete, and the jury shall be discharged from the case. 22 M. 76.

$23. (SEC. 22.) Proceedings on acquittal on ground of insanity. When any person indicted for an offence is, on trial, acquitted by the jury, by reason of insanity, the jury, in giving their verdict of not guilty, shall state that it was given for such cause; and thereupon, if the discharge or going at large of such insane person is considered by the court manifestly dangerous to the peace and safety of the community, the court may order him to be committed to the hospital for the insane, for safe-keeping and treatment, or may order him to be committed to prison, or may give him into the care of his friends, if they shall give bonds with surety, to the satisfaction of the court, conditioned that he shall be well and securely kept; otherwise he shall be discharged. (As amended 1869, c. 17, § 1.

2 M. 99 (123).

§ 24. (SEC. 23.) Hearing on question as to punishment. After a plea or verdict of guilty, in a case where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct. Such circumstances shall be presented by the testimony of witnesses examined in open court.

$25. (SEC. 24.) Dismissal of indictment-reasons to be entered. The court may, either of its own motion or upon the application of the prosecuting officer, and in furtherance of justice, order an action, after indictment, to be dismissed; but in that case, the reasons of the dismissal shall be set forth in the order, and entered upon the minutes.

SECTION.

CHAPTER CXV.

CRIMINAL CALENDAR.

1. Clerk to prepare calendar of indictments. 2. Order of disposal of issues on calendar.

SECTION.

3. Time allowed defendant to prepare for trial. 4. Clerk to keep register of criminal actions.

§ 1. Calendar to be made-contents. The clerk shall prepare a calendar of the indictments pending to be tried at the term, enumerating them according to the date of filing the indictment, and specifying, opposite to the title of each section, whether it is for a felony or a misdemeanor, and whether the defendant is in custody or on bail; and shall, in like manner, enter therein all indictments found during the term, and on which issues of fact or law are joined.

§ 2. Issues on calendar-how disposed of. The issues on the calendar shall be disposed of in the following order, unless, upon the application of either party, for good cause, the court directs an indictment to be tried out of its order:

First. Indictments for felony, where the defendant is in custody;
Second. Indictments for misdemeanor, where the defendant is in custody;
Third. Indictments for felony, where the defendant is on bail; and,
Fourth. Indictments for misdemeanor, where the defendant is on bail.

§ 3. Time to prepare for trial. After his plea, the defendant is entitled to at least four days to prepare for his trial, if he requires it.

§ 4. Register of criminal actions-contents. The clerk shall keep a register of all the criminal actions in the court, in which he shall enter:

First. All cases returned to the court by a magistrate, whether the defendant is discharged or held to answer;

Second. All indictments found in the court, or sent or removed thereto for trial, with the time of finding the indictment, or when it was sent or removed; and,

Third. The time of arraignment, of the demurrer or plea, and of the trial, conviction or acquittal of the defendant, together with a brief note of all the other proceedings in the action.

SECTION.

CHAPTER CXVI.

CHALLENGING JURORS.

SECTION.

bias.

Exemption from jury duty not ground of challenge.

1-2. Definition and kinds-defendants must join.
3-9. Challenge to panel-definition-grounds- 21.
when and how to be taken-exception to
challenge, and trial thereof-allowance or 22-31.
disallowance of exception-denial of chal-
lenge, trial and evidence thereon.
10-14 Challenge to juror-warning to defendant
-kinds of challenge-when to be taken-
peremptory challenge defined - number
allowed.

15-20. Challenge for cause-definition and kinds
-general causes enumerated-particular
causes-implied and actual bias-grounds 32-33.
of challenge for implied bias-for actual

Requisites of challenge for implied or actual bias-exception to challenge and proceedings thereon-denial of challenge -mode of trial, by court or triers-triers to be sworn-juror challenged may be a witness-rules of evidence-court to try challenge for implied bias-instructions to triers of challenge for actual bias-decision of triers.

Order of challenges, in respect to the parties and grounds of challenge.

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