Subscribed and sworn to before me, on this day of 18. ABNER J. KIEL, Justice. [SEAL.] The oath to the affidavit may be made before any officer authorized to administer oaths. Hunter v. State, 102 Ind. 428. If the affidavit is insufficient to charge a crime yet the justice will have jurisdiction to take a recognizance. State v. Gachenheimer, 30 Ind. 63; Adams v. State, 48 Ind. 212. A conviction upon a bad affidavit is a bar to another prosecution so long as the judgment remains in force. Fritz v. State, 40 Ind. 18; State v. George, 53 Ind. 434; McLaughlin. Etchison, 127 Ind. 474. See Shepler v. State, 114 Ind. 194. Two offenses may be charged in the same affidavit and both tried at the same time. Deveny v. State, 47 Ind. 208. If the affidavit is lost a new one may be filed if shown to be an exact copy of the original. Miller v. State, 72 Ind. 421; Small v. State, 106 Ind. 94. The affidavit need not be copied by the justice on his docket. Nash v. State, 7 Ind. 666. 1696. (1627.) Warrant.-54. A warrant substantially in the form following shall be deemed sufficient: State of Indiana, SS: To any constable of county: You are commanded to arrest C. D., and bring him, forthwith, before me, at my office, to answer the charge of having, at said county, on the 18-[here state the offense], as A. B. has complained on oath; day of and have then and there this writ. Dated this day of 18-. ABNER J. KIEL, Justice. [SEAL.] If the warrant is issued to a special constable it must be directed to him by name. Dietrichs v. Schaw, 43 Ind. 175; State v. Wenzel, 77 Ind. 428. As to what is a sufficient description of the offense in the warrant. See Jeffries v. McNamara, 49 Ind. 142. If the warrant is void, the justice will not acquire jurisdiction over the defendant by its service. State v. Wenzel, 77 Ind. 428. The name of the defendant should be stated in the warrant, but if he appears without objection the defect will be waived. Ard v. State, 114 Ind. 542. As to the sufficiency of the return on the warrant, see Fisher v. Hamilton, 49 Ind. 341. 1697. (1628.) Proceedings after arrest.-55. When the officer holding the warrant arrests the accused, he shall take him before the justice of the peace; and it shall be the duty of such justice to docket the cause as in civil cases, and to hear the cause, and either acquit, convict and punish, or hold to bail, the offender, or if the offense be not bailable, commit him to jail, as the facts and the law may justify. On a charge of felony the justice can only recognize the defendant or discharge him. Hawkins v. State, 24 Ind. 288; State v. Morgan, 62 Ind. 35. The trial of criminal actions may be had on Sunday. State v. Douglass, 69 Ind. 544. Justices of the peace may try cases where the punishment may be a fine and imprisonment, or where the punishment may be a fine or imprisonment. Miller v. State, 72 Ind. 421. If imprisonment is a part of the punishment the defendant must be present at the trial. Sturgeon v. Gray, 96 Ind. 166. If several defendants are jointly convicted there should be several judgments. Sturgeon v. Gray, 96 Ind. 166. When the defendant is acquitted, the justice may at any time afterwards enter the judgment on his docket. Wright v. Fansler, 90 Ind. 492. Justices of the peace can not grant new trials in criminal actions. Steel v. Williams, 13 Ind. 73; Moore v. State, 72 Ind. 358. There should be a plea entered by the defendant, but a failure to arraign him is immaterial. Johns v. State, 104 Ind. 557. Constables can only take bail when the amount is fixed by the justice. State v. Winninger, 81 Ind. 51. The justice can not fix the bail in cases of felony when the warrant is issued. State v. Winninger, 81 Ind. 51. Peace officers may arrest without a warrant when a misdemeanor is committed within their view, and for felonies when they have cause to believe that such a crime has been committed, but if private person arrests for a felony not committed in his view, such crime must have been committed in order to justify the arrest. Doering v. State, 49 Ind. 56. 1698. (1629.) Counsel and prosecutor.-56. It shall be the duty of such justice to give the defendant an opportunity to employ counsel if he so desire, and the justice shall also notify the prosecuting attorney or his deputy of the proceeding, if they or either of them are present within the township. Prosecuting attorneys may prosecute criminal actions before justices. State v. Morrison, 64 Ind. 141; State v. Jackson, 68 Ind. 58. 1699. (1630.) Continuance-Recognizance-Witnesses.-57. When a continuance is had, the accused may, if the offense be a bailable one, enter in a recognizance before the justice, with good and sufficient surety to be approved by him, in such amount as he may deem reasonable, conditioned for the appearance of the accused before such justice at a place, day and hour in the recognizance specified; and he shall also recognize the witnesses in the same manner as prisoners are held to bail or witnesses recognized for their appearance at the circuit or other courts. If the accused is on bail, and appears on the day fixed for the trial, and the cause is continued without a new bond and the accused does not appear on the next trial day, his bond may be forfeited. State v. Thompson, 62 Ind. 367. If the justice has no jurisdiction the recognizance taken can not be enforced. State v. Wenzel, 77 Ind. 428; Hannum v. State, 38 Ind. 32. The fact that the affidavit filed before the justice is defective will not render void a recognizance taken by him. State v. Gachenheimer, 30 Ind. 63; Adams v. State, 48 Ind. 212; Friedline v. State, 93 Ind. 366. 1700. (1631.) Proceedings after forfeiture.-58. On the forfeiture of any recognizance taken by virtue of the last preceding section, the justice shall indorse thereon his certificate, stating in substance that such prisoner did not appear in discharge of such recognizance and abide the judgment of the court; and shall forthwith file such recognizance, so indorsed, with the clerk of the circuit or other proper court. And such clerk shall forthwith record, in the order book of his court, such recognizance and certificate of forfeiture, and note the same on the judgment docket; and such record shall have the same force and effect as other recognizances; and such certificate, or the record thereof, shall be presumptive evidence of the forfeiture of such recognizance. In a suit on a bond forfeited before a justice of the peace it must be alleged that the defendant was called and defaulted, and it must also appear that the bond was filed with the certificate of the justice thereon, with the clerk of the circuit court. State, 37 Ind. 339; Hannum v. State, 38 Ind. 32. Urton v. Suit may be brought on a bond forfeited before a justice of the peace without the justice endorsing his certificate on such bond and filing the same with the clerk of the circuit court. Adams v. State, 48 Ind. 212; Gachenheimer v. State, 28 Ind. 91. The complaint need not allege that the surety was called to bring in the body of the principal. Rubush v. State, 112 Ind. 107. The complaint must show jurisdiction in the justice to take the recognizance. Hawkins v. State, 24 Ind. 288. If the justice changes his office between the time of taking the recognizance and day of trial, the defendant must have notice of the change before his recognizance can be forfeited. Hannum v. State, 38 Ind. 32. If the justice makes a certificate and record of the forfeiture of a recognizance, the same can not be contradicted in a suit on such recognizance. Friedline v. State, 93 Ind. 366. In a suit on a recognizance forfeited before a justice the circuit court can not set aside the forfeiture taken before the justice. Day v. State, 125 Ind. 582. In an action on a recognizance the complaint must show that the officer had authority to take the recognizance. State v. Winninger, 81 Ind. 51. A copy of the certificate of the justice indorsed on the bond need not be filed with the complaint. Fowler v. State, 91 Ind. 507. The defendant can not set up a defense to a suit on the bond that he did not appear because of threats or fear of violence. Fleenor v. State, 58 Ind. 166. The death of the principal, after the forfeiture, may be set up as a defense, except as to costs. Woolfolk v. State, 10 Ind. 532. 1701. (1632.) Changes of venue.-59. "Changes of venue shall be granted upon the application of the prisoner, as in civil cases, but the cost thereof shall abide the event of the prosecution, and in such case the justice granting the change shall fix the time of trial, before the justice to whom he may send the cause, or the justice may in like manner send the cause to the mayor or police judge of any city, and the prisoner and witnesses shall be recognized to appear before the Justice, mayor or police judge to whom the case is sent, in the same manner as provided in cases of continuance, and such recognizance, if forfeited, shall be certified by the justice, mayor or police judge, taking such forfeiture in the same manner as in cases of continuance and with like effect. (As amended, Acts 1893, p. 144. In force February 25, 1893.) In proceedings for contempt a change of venue can not be taken. State v. Newton, 62 Ind. 517. If the defendant, on obtaining a change of venue, fails to give a new bond, his recognizance may be declared forfeited. Fowler v. State, 91 Ind. 507. When the defendant makes a proper application for a change of venue it must be granted, and the justice has no further jurisdiction over the case. Smelzer v. Lockhart, 97 Ind. 315. 1702. (1633) Special constables.-60. Special constables may be appointed under like circumstances, and such appointment shall impose like liabilities, as in civil cases. See sections 1506-7. Dietrichs v. If process is directed to a special constable, it must set forth his name. Schaw, 43 Ind. 175; State v. Wenzel, 77 Ind. 428; Hayden v. Souger, 56 Ind. 42. Designating a special constable as a deputy constable is immaterial. Ziegler r. Powell, 54 Ind. 173. When a special constable is appointed he may serve all process issued in the cause. Hood v. Sennett, 70 Ind. 329. The justice and his sureties are responsible for the acts of a special constable. Hood v. Sennett, 70 Ind. 329. The name of a special constable need not be inserted in a mittimus delivered to him. Sturgeon v. Gray, 96 Ind. 166. 1703. (1634.) How recognized, if felony.-61. When the offense charged is a felony, and the justice, upon the hearing, is of the opinion that the accused should be held to answer such charge, he shall be recognized to appear at the next term of the criminal court of such county, or, if there be no criminal court, then to the circuit court of such county. If there are several charges against the same person the justice may elect on which charge he will recognize the accused. State v. Shaw, 4 Ind. 428. Persons jointly charged with the commission of a felony may be jointly recognized. Holtzclaw v. State, 4 Ind. 597. When the accused has been recognized to appear before a higher court, the justice has no further control over the case. Steel v. Williams, 13 Ind. 73. On a charge of felony, the justice can only recognize or discharge the accused. Hawkins v. State, 24 Ind. 288; State v. Morgan, 62 Ind. 35; Siebert v. State, 95 Ind. 471; State v. Morgan, 62 Ind. 35. The discharge of a defendant by a justice on a charge of felony is no bar to a subsequent prosecution. State v. Morgan, 62 Ind. 35; State v. Hattabaugh, 66 Ind. 223; Siebert v. State, 95 Ind. 471. 1704. (1635.) Trial of misdemeanor.-62. If the offense charged be a misdemeanor, and one that the justice of the peace has jurisdiction to punish, the prisoner or the state may demand a jury, which may be impaneled and sworn as in other criminal cases; or he may be tried by the justice. If the defendant is charged with a misdemeanor, the minimum punishment for which is beyond the jurisdiction of the justice, the defendant must be discharged. Nace v. State, 117 Ind. 114. When the trial is by jury the number of jurors can not be less than required by statute, even with the consent of the accused. Allen v. State, 54 Ind. 461; Moore v. State, 72 Ind. 358, When a jury has been out a reasonable time without agreeing upon a verdict, the discharge of the jury will not work an acquittal. Fowler v. State, 85 Ind. 538; State v. Leach, 120 Ind. 124. When the defendant is acquitted by the jury the justice should enter a judgment of discharge, but this may be done at any time. Wright v. Fansler, 90 Ind. 492; Moore v. State, 72 Ind. 358. New trials can not be granted by justices in criminal cases. State v. Williams, 13 Ind. 73; Moore v. State, 72 Ind. 358. 1705. (1636.) When punishment inadequate.-63. Such justice or jury, if they find the prisoner guilty of a misdemeanor, shall assess his punishment; or if, in their opinion, the punishment they are authorized to assess is not adequate to the offense, they may so find, and, in such case, the justice shall hold such prisoner to bail for his appearance before the proper court, or commit him to jail in default of such bail. This section does not apply where the minimum punishment is greater than the justice is authorized to inflict. Nace v. State, 117 Ind. 114. When it is determined that the accused should be recognized to a higher court, the only duty of the justice is to take bail and file the bond with the clerk of such court. Butler v. State, 113 Ind. 5. On the case reaching the higher court, the defendant must be tried upon an indictment or information filed in such court. Butler v. State, 113 Ind. 5. If the justice recognizes the accused under this section, it will amount to a finding that the punishment he is authorized to inflict is inadequate. Harris v. State, 54 Ind. 2. 1706. (1637.) Jurisdiction.-64. The jurisdiction of justices of the peace in criminal cases shall be co-extensive with their respective counties, and they shall have exclusive original jurisdiction in all cases where the fine assessed can not exceed three dollars, and concurrent jurisdiction with the criminal court and circuit court to try and determine all cases of misdemeanor punishable by fine only; and in trials before justices, fines to the extent of twenty-five dollars, with costs, may be assessed; and they shall have jurisdiction to make examination in all cases; but they shall have no power to adjudge imprisonment as a part of their sentence, except in the manner specially provided in this act. Justices of the peace have jurisdiction to assess punishment where the punishment may be by fine only, or by fine with discretion to imprison. Miller v. State, 72 Ind. 421; State v. Creek, 78 Ind. 139; State v. Wolever, 127 Ind. 306. When imprisonment must be apart of the punishment justices only have jurisdiction as examining courts. State v. Creek, 78 Ind. 139. When the minimum punishment that may be assessed exceeds the jurisdiction of the justice the accused must be discharged. Nace v. State, 117 Ind. 114. When the punishment can not exceed a fine of three dollars justices have exclusive jurisdiction. Long v. State, 13 Ind. 566. If the title to real estate incidentally comes in issue, the justice is not ousted of jurisdiction. Miller v. State, 72 Ind. 421. Justices of the peace can not be held civilly liable for erroneously entertaining jurisdiction of a cause. State v. Wolever, 127 Ind. 306. 1707. (1638.) Assault, battery, and affray.-65. Whenever an affidavit for assault, or assault and battery, is filed with a justice, he shall cause the injured party to be subpoenaed as a witness; and such justice shall not hear or determine such complaint unless the injured party be present as a witness at the trial, or, having been subpoenaed, refuses to attend, and can not be compelled to attend by attachment for any other cause than sickness or inability to attend by reason of the injuries he may have received from the defendant; or unless a subpoena, issued for the injured party, shall have been returned "not found" by the proper officer, after a diligent search for such witness in the proper county. And no trial shall be had upon a complaint |