6. The court must then charge the jury.

This section, with the exception of the fifth subdivision, is adapted from section 440. he reasons given in the note to that section, p. 206-209, are equally applicable to this. The fifth subdivision is taken from section 442, p. 209.

§ 725. The provisions of sections 474 and 476, in respect to the duty of the court upon questions of law, and of the jury upon questions of fact, and the provisions of section 477, in respect to the charge of the court to the jury,upon the trial of an indictment, apply to the trial of the question of insanity.

See the notes to sec. 474, 476, 477, p. 223, 224.

§ 726. If the jury find the defendant sane, the trial of the indictment must proceed, or judgment may be pronounced, as the case may be.

§ 727. If the jury find the defendant is insane, the trial or judgment must be suspended, until he become sane; and the court, if it deem his discharge dangerous to the public peace or safety, may order that he be, in the mean time, committed by the sheriff to the state lunatic asylum, and that upon his becoming sane, he be re-delivered by the superintendent of the asylum to the sheriff.

Conformable to 1 R. S. 3d ed. 813, sec. 44.

§ 728. The commitment of the defendant, as mentioned in the last section, exonerates his bail, or entitles a person authorised to receive the property of the defen[CRIM. CODE.]

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dant, to a return of money he may have deposited instead of bail.

The commitment of the defendaut to the asylum, should have the same effect in discharging the security given for his appearance, as his recommitment for any other cause scribed in sec. 661, p. 312, 313.

as pre

§ 729. If the defendant be received into the asylum, he must be detained there until he become sane. When he becomes sane, the superintendent must give notice of that fact to the sheriff and district attorney of the county. The sheriff must thereupon, without delay, bring the defendant from the asylum, and place him in the proper custody until he be brought to trial or judgment, as the case may be, or be legally discharged.

Conformable to 1 R S. 3d ed. 813, sec. 45.

§730. The expenses of sending the defendant to the asylum, of keeping him there, and of bringing him back, are, in the first instance, chargeable to the county from which he was sent; but the county may recover them from the estate of the defendant, if he have any, or from a relative, town, city, or county, bound to provide for and maintain him elsewhere.

Conformable to 1 R. S. 3d ed. 813, sec. 44.

CHAPTER VI.

COMPROMISING CERTAIN PUBLIC OFFENCES, BY LEAVE OF THE COURT.

SECTION 731. Certain offences, for which the party injured has a civil action, may be compromised.

732. Compromise to be oy permission of the court. Order thereon.
733. Order, a bar to another prosecution.

734. No public offence to be compromised, except as provided in this
chapter.

The principle involved in this chapter is not new, in the legislation of this state. It is, that misdemeanors, where a civil remedy is not only given to the party injured but is a more appropriate remedy, may be compromised, upon leave of the court. There are many cases, which are technically public offences, but which are in reality rather of a private than a public nature, and where the public interests are better promoted by checking than by encouraging criminal prosecutions. Of this class are libels, and simple assaults and batteries; or those which according to section 731, are not committed by or upon an officer of justice, while in the execution of the duties of his office, or riotously, or with an intent to commit a felony. With these exceptions, cases of this nature have by the policy of our statutes, always been considered fit subjects of compromise: 2 R. S. 3d ed. 815, 816, sec. 68-71; 1 R. L. of 1813, p. 499, sec. 19; a policy which has been carried by the courts, still further than the terms of the statute. For while they will not permit a compromise after conviction, The People v. Bishop, 5 Wend. 111, nor stay the indictment, because a civil action is pending for the same cause, The People v. The Judges of Genesee, 13 Johns. 85, yet, in the case last cited, it was taken as undeniable, that judgment after conviction might be stayed, until after the determination of a civil action for the same matter, to enable the court to award an appropriate sentence, in view of the completeness of the civil remedy.

The chapter in question, however, contains one important, and as the Commissioners think, necessary departure from the existing statutes. By 2 R. S. 3d ed. 815, 816, sec. 68, 69, the authority to permit this compromise, is given also to the committing magistrate. This should not be. It is too grave a dispensing power, to be confided to any other than the court to which the case must be returned; and it is accordingly con

fined by section 732, to the court. The reasons for this change, seem too obvious to require illustration. Where an assault and battery, for example, partakes of the character contemplated in the exceptions in section 731, the public has an interest in its prosecution and to allow a compromise, by the permission of the magistrate, when it is often difficult to determine whether one of those elements enters into the offence or not, and upon his inexperience or mistaken judgment, to withdraw the case from either a public investigation, or at all events from the scrutiny of the court, in no degree comports with either the solemnity or the object of a criminal proceeding.

§ 731. When a defendant is held to answer, on a charge of a misdemeanor, for which the person injured by the act constituting the offence, has a remedy by a civil action, the offence may be compromised, as provided in the next section, except when it was committed, 1. By or upon an officer of justice, while in the execution of the duties of his office;

2. Riotously: or,

3. With an intent to commit a felony.

§ 732. If the party injured appear before the court, to which the depositions and statement are required, by section 220, to be returned, at any time before trial on an indictment for the offence, and acknowledge in writing that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom. But in that case, the reasons for the order must be set forth therein and entered upon the minutes.

§ 733. The order authorised by the last section, is a bar to another prosecution for the same offence.

§ 734. No public offence can be compromised, nor can any proceeding for the prosecution or punishment thereof, upon a compromise, be stayed, except as provided in sections 731 and 732.

CHAPTER VII.

DISMISSAL OF THE ACTION, BEFORE OR AFTER INDICTMENT, FOR WANT OF PROSECUTION OR OTHERWISE.

SECTION 735. Dismissal, when a person held to answer is not indicted at the next term thereafter.

736, When a person indicted is not brought to trial at the next term thereafter.

737. Court may order action to be continued, and in the mean time discharge defendant from custody, on his own undertaking, or on bail.

738. If action dismissed, defendant to be discharged from custody, or his bail exonerated, or deposite of money refunded.

739. Court may, of its own motion, or on application of district attorney, order indictment to be dismissed. Order to state reasons. 740. Nolle prosequi abolished. No indictment to be dismissed or abandoned, except according to this chapter.

741. Dismissal, a bar, in misdemeanor; but not in felony.

This chapter is intended to remedy, what the Commissioners deem defects in the existing practice, productive not only of great inconvenience, but of flagrant injustice. When a defendant is held to answer, or is indicted, there is now no mode of his compelling the prosecution to proceed to trial, or of his being relieved from the indictment, in the event of their failure to do so. Until the attorney-general sees fit to exercise his power to enter a nolle prosequi, or the district attorney to exert his more limited authority, of applying to the court for permission to do so, the indictment may be kept forever suspended over the head of the defendant. The only remedy he can obtain, after months, or even years, of inexcusable neglect to bring him to trial, is by an order of the court, discharging him either upon bail or upon his own recognizance. The legislature have provided, that in all cases,