for an affray, unless some person who saw the same shan De present as a witness, or, having been subpoenaed, refuses to attend. All judgments of such justice in violation of the provisions of this section shall be void. The fact that the injured party is not subpoenaed as witness, and is not present at the trial, will not render the proceedings void. State v. George, 53 Ind. 434. If a person fraudulently procures himself to be prosecuted, and the injured party is not subpoenaed and is not present at the trial, the judgment will not bar another prosecution. Watkins v. State, 68 Ind. 427; Halloran v. State, 80 Ind. 586. 1708. (1639.) Offense improperly charged.-66. Whenever upon the trial of any person for a misdemeanor before a justice of the peace, or while a preliminary examination is had before such justice of any person upon a charge of felony or any other public offense, it appears to such justice that a mistake has been made in charging the proper offense, or that he is guilty of an offense not charged, the justice shall not discharge the defendant, if there appears to him to be good cause to detain him in custody; but he must cause an affidavit, charging the proper offense, to be made against the defendant, and recognize him to answer the same; and, if necessary, also recognize the witnesses to appear and testify. When the proper charge is a felony, he shall also notify the prosecuting attorney or his deputy, if present in the county, to conduct such trial or examination. 1709. (1640.) Crimes not punishable by city or town.-67. Whenever any act is made a public offense against the state by any statute and the punishment prescribed therefor, such act shall not be made punishable by any ordinance of any incorporated city or town; and any ordinance to such effect shall be null and void, and all prosecutions. for any such public offense as may be within the jurisdiction of the authorities of such incorporated cities or towns, by and before such authorities, shall be had under the state law only. Prior to the enactment of this section the same act might be made punishable by both the state and municipal authorities. Sloan v. State, 8 Blkf. 361. This section is constitutional. Jett v. City of Richmond, 78 Ind. 316. Cities and towns may enact and enforce ordinances prohibiting the sale of liquors without a license. Zeller v. Crawfordsville, 90 Ind. 262; Clevenger v. Rushville, 90 Ind. 258; Frankfort v. Aughe, 114 Ind. 77. Cities can not make and enforce a penal ordinance for interfering with a member of the police force created by the metropolitan police act of 1883. Indianapolis v. Huegele, 115 Ind. 581. 1710. (1641.) Offenses in view.-68. Where any offense is committed in view of any justice, he may, by verbal direction to any constable or, if no constable be present, to any citizen, cause such constable or citizen to arrest such offender and keep him in custody for the space of one hour, unless such offender shall sooner be taken from such custody by virtue of a warrant issued on complaint on oath. But such person so arrested shall not be confined in jail nor put upon trial until arrested by virtue of such warrant. When a justice directs the arrest of a person under this section, such person can only be detained one hour without process, and can only be tried upon a complaint under oath. O'Brian v. State, 12 Ind. 369. 1711. (1642.) Witnesses.-69. Whenever any justice shall hold 4-14 any prisoner to bail, or commit him to jail in default of bail, he shall also recognize, with or without surety in his discretion, such witnesses as he may deem important, to appear and testify before the court where such cause is next to be heard. 1712. (1643.) Appeal.-70. Any prisoner against whom any punishment is adjudged may appeal to the criminal court, and, if there be none, then to the circuit court of the county, within ten days after trial, on entering into recognizance for his appearance at the next term of such court, as in other cases; and such appeal shall stay all proceedings. If an ordinary appeal bond is filed instead of a recognizance as herein provided, the appeal should not be dismissed for this reason. Vierling v. State, 33 Ind. 218; Ott v. State, 35 Ind. 365. The failure of the justice to send up the papers within the time fixed by statute does not affect the rights of the appellant. State v. Cressinger, 88 Ind. 499. An appeal can not be taken until after a judgment is rendered. Sturgeon v. Gray, 96 Ind. 166. The defendant can not dismiss his appeal without the consent of the court. Wisehart v. State, 104 Ind. 407. When the defendant pleads guilty and enters bail for the stay of execution, he can not appeal from the judgment. Holsclaw v. State, 114 Ind. 506. If the justice had no jurisdiction of the subject-matter, the appellate court will not acquire jurisdiction on appeal. Nace v. State, 117 Ind. 114; Mays v. Dooley, 59 Ind. 287. If the affidavit is lost a new one may be filed in the appellate court. Small v. State, 106 Ind. 94. If a plea is entered before the justice no further plea is required in the appellate Clerical errors in copying the affidavit into the transcript are immaterial. Hunter v. If on filing bond instructions are given not to make out the transcript until further orders, the appeal will not be deemed taken until such orders are given. Baumbauer v. State, 76 Ind. 351. The cause is to be tried in the appellate court on the affidavit filed with the justice. Appeals can not be authorized to be taken after the time fixed by statute for the tak- 1713. (1644.) Form of recognizance.-71. Recognizances for the appearance of prisoners shall, in all cases, be taken with freehold surety, and shall be substantially in the following form: We, A. B. and C. D., severally acknowledge ourselves bound to the state of Indiana Witness our hands and seals this day of 18-. A. B. [SEAL.] C. D. [SEAL.] An ordinary appeal bond will operate as a recognizance. Vierling v. State, 33 Ind. 218; Ott v. State, 35 Ind. 365. An immaterial alteration of a recognizance will not affect its validity. Harris . State, 54 Ind. 2. 1714. (1645.) Recognizance and transcript.-72. Such recognizance, together with transcript of the proceedings and all papers in the case, shall be forthwith filed by the justice with the clerk of the proper court, who shall docket such cause for trial and record such recognizance forthwith, and enter the same on the judgment docket; and from the date of such entry it shall operate as a lien upon all lands in the county of the parties thereto, and any judgment afterward had upon it shall have relation back to the date of such entry. Failure of the justice to send up the papers within the time fixed by statute does not affect the rights of the appellant. State v. Cressinger, 88 Ind. 499. Clerical errors in the transcript will be regarded as immaterial. Hunter v. State, 102 Ind. 428. 1715. (1646.) Judgment.-73. Whenever judgment shall be rendered for a fine, it shall be a part of such judgment that the defendant stand committed until such fine be paid or replevied. And the defendant may replevy such judgment for ninety days in the same manner as in civil cases; and such replevy shall have the force and effect of a like undertaking in civil cases. See section 1932. A statement that after hearing the evidence the defendant was fined a named sum, as adjudged by the justice, is not a judgment. Jeffries v. McNamara, 49 Ind. 142. The defendant may be committed for non-payment of costs as well as the fine. McCool v. State, 23 Ind. 127. If imprisonment is a part of the punishment, the defendant must be present at the rendition of the judgment. Sturgeon v. Gray, 96 Ind. 166. Judgments rendered against persons jointly prosecuted, should be several as to each defendant. Sturgeon v. Gray, 96 Ind 166. When the defendant is acquitted, the judgment may at any time afterwards be entered. Wright v. Fansler, 90 Ind. 492. 1716. (1647.) Commitment.-74. If such defendant do not immediately pay or replevy the same, the justice shall commit him to jail, there to remain one day for each dollar of such fine and costs so adjudged against him. A mittimus valid on its face justifies the officer acting under it, although there is no judgment against the accused. Jeffries v. McNamara, 49 Ind. 142. Reasonable delay on the part of the justice in issuing the mittimus will not render it void. McLaughlin v. Etchison, 127 Ind. 474. [1881 S., p. 114. In force September 19, 1881.] 1717. (1648.) Number of jurors.-75. The grand jury shall be composed of six persons having the qualifications required by law. See sections 1450, 1452. The act of 1875, reducing the number of grand jurors, did not go into effect until after the first of March, 1876. State v. May, 50 Ind. 170. The impaneling of a grand jury may be shown by the statements in the indictment. Henning v. State, 106 Ind. 386. 1718. (1649.) Excuse-Fine.-76. A grand juror may be excused from attendance on account of his own sickness or physical infirmity; or the sickness or death of any member of his family; or because he is a ferryman, or a member of a fire company in a city or town, in active service; or a minister of the gospel; or because he is over sixty years of age, and desires to be excused for such reason. If a person summoned as a grand juror fail to appear or show, to the satisfaction of the court, one of the foregoing causes for non-attendance, he shall be punished by a fine of ten dollars, imposed by the court as for a contempt, by an order to be entered on the order-book of the court. The order shall be deemed a judgment, in all respects in favor of the county. When the record does not disclose the reason for the excuse of a grand juror, it will be presumed to have been for a statutory cause. Burrell v. State, 129 Ind. 290. ཝཱ 1719. (1650.) Foreman.-77. From the persons summoned to serve as grand jurors, and appearing, the court must appoint a foreman, and may remove him for cause. The court must also appoint a foreman when a person already appointed is discharged or excused before the grand jury is dismissed. 1720. (1651.) Re-summoning - Talesman.-78. Whenever the grand jury is dismissed before the final adjournment, they may be summoned to attend again at the same term if necessary. If a full jury do not attend, the number may be completed from the bystanders; but before any talesman is accepted and sworn, the court must inquire of him, under oath, as to his qualifications. If a grand jury is dismissed before the end of the term, it may be re-convened at same term. Long v. State, 46 Ind. 582. If the jury fails to meet on the day directed by the court, but meets at a later day during the term, it will be legally in session. Clem v. State, 33 Ind. 418. It will be presumed that talesmen were properly selected under the direction of the court when the contrary is not shown. Kessler v. State, 50 Ind. 229. When a grand jury is re-summoned during the term, vacancies existing thereon may be filled from the by-standers. Dorman v. State, 56 Ind. 454. Failure of the court to interrogate a by-stander called as a juror, as to his qualifications, will be immaterial if he is in fact qualified. Sage v. State, 127 Ind. 15. All vacancies on a grand jury may be filled from the by-standers. Burrell v. State, 129 Ind. 290. 1721. (1652.) Oath.-79. The following oath must be administered to the grand jury: You, and each of you, do solemnly swear, that you will diligently inquire, and true presentment make, of all felonies and misdemeanors, committed or triable, within this county, of which you shall have or can obtain legal evidence; that you will present no person through malice, hatred or ill-will, nor leave any unpresented through fear, favor, or affection, or for any reward, or the promise or hope thereof, but in all your indictments you will present the truth, the whole truth, and nothing but the truth; and that you will not disclose any evidence given or proceeding had before the grand jury. So help you God. 1722. (1653.) New juryman.-80. If after the grand jury are sworn, any person be appointed as a grand juror, the oath, as prescribed in the preceding section, must be administered to him, commencing thus, You, as one of this grand jury"; and, so on, to the end. The oath of the jurors does not prevent them from being used as witnesses as to what occurred before the grand jury. Burnham v. Hatfield, 5 Blkf. 21; Shattuck v. State, 11 Ind. 473; Burdick v. Hunt, 43 Ind. 381. It will be presumed that grand jurors were sworn when the contrary does not appear. Holloway v. State, 53 Ind. 554. 1723. (1654.) Charge to.-81. The grand jury, being impaneled and sworn, must be charged by the court. In such charge, the court must plainly instruct them as to their duties, and give them such information as it may deem proper in relation to any charges and crimes returned into court, or likely to come before the grand jury. 'he failure to instruct does not affect the validity of an indictment. Stewart v. State, 24 Ind. 142. That the grand jury was properly impaneled, sworn, and charged is presumed unless the record show otherwise. Holloway v. State, 53 Ind. 554. 1724. (1655.) Clerk.--82. The grand jury mus select one of their number as clerk, who must take minutes of their proceedings (except the votes of the individual members on a presentment or indictment), and also of the evidence given before them; which shall be preserved for the use of the prosecuting attorney, to subserve the purposes of justice. 1725. (1656.) Challenge.-83. A person held to answer a charge for felony or misdemeanor may challenge an individual grand juror, before the jury is sworn, for one or more of the following causes; and these only: First. That such individual grand juror is a minor. Second. That he is not a freeholder or householder of the county. Third. That he is an alien. Fourth. That he is insane. |