discretion, and in all cases of felony punishable by death shall grant a change of venue to the most convenient county. The clerk must thereupon immediately make a transcript of the proceedings and orders of court, and having sealed up the same with the original papers, shall deliver them to the sheriff, who must, without delay, deposit them in the clerk's office of the proper county aud make his return accordingly: Provided, however, That only one change of venue from the judge and no more, and one change of venue from the county and no more, shall be granted.

It is within the discretion of the court whether a change of venue shall be granted from the county. Griffith v. State, 12 Ind. 548; Fahnestock v. State, 23 Ind. 231; Morgan v. State, 31 Ind. 193; Mershon v. State, 44 Ind. 598; Merrick v. State, 53 Ind. 327; Spittorff v. State, 108 Ind. 171; Reinhold v. State, 130 Ind. 467.

In capital cases the court has no discretion. Hunnel v. State, 86 Ind. 431.

On applications for a change from the county counter-affidavits may be filed. Anderderson v. State, 28 Ind. 22; Clem v. State, 33 Ind. 418; Bissot v. State, 53 Ind. 408.

The court may make rules as to when an application for a change of venue shall be filed. Redman v. State, 28 Ind. 205; Galloway v. State, 29 Ind. 442; Reitz v. State, 33 Ind. 187; Lott v. State, 122 Ind. 393; Bernhamer v. State, 123 Ind. 577.

When the cause for a change of venue is discovered after the time fixed by rule for making the application, the rule will not apply. Railroad Co. v. Avery, 31 Ind. 277; Shoemaker v. Smith, 74 Ind. 71.

When a party appears to the action after the time fixed by rule for making the application the rule will not apply. Truitt v. Truitt, 38 Ind. 16.

In the absence of a rule upon the subject the application may be made at any time before the jury is sworn. Hunnel v. State, 86 Ind. 431.

In the absence of a contrary showing it will be presumed that the clerk performs his duty in reference to making a transcript and the transmission thereof with the original papers to the proper court. O'Brien v. State, 125 Ind. 38; Duncan v. State, 84 Ind. 204. The affidavit for a change of venue is not an "original paper" within the meaning of this section. Bright v. State, 90 Ind. 343.

The indictment must be transmitted to the court to which the cause is sent, but it need not be attached to the transcript. Keith v. State, 90 Ind. 89; Duncan v. State, 84 Ind. 204.

1841. (1772.) Jurisdiction and proceedings.-197. The jurisdiction of the latter court is complete, and the cause must be docketed and stand for trial at the first term; and such court shall take cognizance of such cause, and proceed therein to trial, judgment, and execution, in all respects as if the indictment therein had been found and returned by a grand jury impaneled in such court, or on the information originally filed therein.

The court to which the venue is changed has no jurisdiction of the cause or of the defendant, until a transcript of the proceedings, duly certified and attested, and the original papers, have been filed in its clerk's office. Fawcett v. State, 71 Ind. 590. When the papers are properly filed jurisdiction is acquired. Duncan v. State, 84

Ind. 204.

The record must show that the original indictment was filed in the court to which the cause was sent. Sawyer v. State, 16 Ind. 93; Adell v. State, 34 Ind. 543; Keith v. State, 90 Ind. 89.

The indictment need not be copied into the transcript. Leslie v. State, 83 Ind. 180; Powers v. State, 87 Ind. 144.

The transcript need not show the transmission of the papers. Keith v. State, 90 Ind. 89. It will be presumed that the papers were properly transmitted. Leslie v. State, 83 Ind. 180; O'Brien v. State, 125 Ind. 38.

If the transcript is not complete, it may be perfected. Adell v. State, 34 Ind. 543; Burrell v. State, 129 Ind. 290.

An appearance by the defendant and submission to the jurisdiction of the court will be a waiver of objections to a defective transcript. Burrell v. State, 129 Ind. 290; App v. State, 90 Ind. 73.

If the record shows the return of the indictment, and the indictment recites the impaneling of a grand jury, a legal grand jury will be shown. Bailey v. State, 39 Ind. 438; Powers v. State, 87 Ind. 144.

1842. (1773.) Removal of accused.-198. The sheriff of the county from which the venue is taken, when such defendant is in custody, shall, under the order of the court, transfer and deliver him to the sheriff of the county to which such change is allowed; and upon such transfer and delivery, with a certified copy of such order of change, the sheriff last mentioned shall receive and detain the defendant in his custody until legally discharged therefrom, and give a certificate of such delivery to the other sheriff.

1843. (1774.) New prosecution - Election as to county.-199. If it shall be necessary to institute a new prosecution for the same. offense after such change, the defendant in such case shall elect, when thereunto required by the court, whether such further prosecution shall be instituted in the court to which or from which such change of venue was taken; and thereupon he may be recognized to appear in the court which he elects, or be committed for want of bail, detained in custody, or remanded to the county from which the change was taken, as the case may require.

1844. (1775.) Recognizance.-200. If he give recognizance to appear before the circuit or other proper court of such last mentioned county, the same shall be taken of record; and a copy thereof, certified, under the seal of the court, to the clerk of the court to which he is recognized, shall be recorded by the clerk thereof, and shall have the same force and effect in such last mentioned court as if originally taken therein.

1845. (1776.) Proceedings in removal.-201. If such defendant is prosecuted for such offense in the court to which such change was taken, such indictment may be found, or information filed, and prosecuted to final execution therein, as if such offense had been committed in the county of such court; but the indictment or information in such case shall state how the proceeding came into the court where the party elects to be tried, and that he has elected to be tried in such county.

1846. (1777.) Proceedings, when remanded.-202. If such party refuse to elect in which county such prosecution may be instituted, he shall be recognized to appear before or be remanded to the proper court of the county from which the change of venue was taken, in like manner as if he had elected to be proceeded against in such county. 1847. (1778.) Costs of change.-203. In all changes of venue

from the county, the county from which the change was taken shall be liable for the expenses and charges of removing, delivering and keeping the prisoner, and the per diem allowance and expenses of the jury trying the cause, and of the whole panel of jurors in attendance during the trial.

See section 418.

So much of section 414, R. S. 1881, as applies to costs in changes of venue in criminal actions, was repealed by sections 1778 and 1779, R. S. 1881. State, ex rel., v. Miller, 107 Ind. 39; State, ex rel., v. Moore, 121 Ind. 116.

1848. (1779.) Costs, how taxed.-204. All costs and charges specified in the last preceding section, or coming justly and equitably within its provisions, shall be audited and allowed by the court trying such cause; but where specific fees are allowed by law for any duty or service, no more or other costs shall be allowed therefor than could be legally taxed in the court from which such change was taken.

When an allowance is made by the court under this section the county auditor has no discretion, but must draw his warrant for the amount of such allowance, and may be compelled by mandate to do so. Gill v. State, ex rel., 72 Ind. 266; State, ex rel., v. Miller, 107 Ind. 39.

The county from which a change of venue is taken is liable for the fees of an attorney appointed to defend the defendant, both in the lower court and in the supreme court on appeal, and the court may fix the amount of such allowance. Board v. Courtney, 105 Ind. 311; State, ex rel., v. Miller, 107 Ind. 39; Gordon v. Board, 44 Ind. 475; Gordon v. Board, 52 Ind. 322.

The foregoing sections do not include the fees of officers where defendants are permitted to defend as poor persons. Ex parte Harrison, 112 Ind. 329.

1849. (1780.) Sheriff's expenses.205. Sheriffs, for delivering prisoners to the sheriffs of other counties, under the provisions of the foregoing section, shall receive their actual and necessary traveling expenses, to be allowed by the court with the other costs in the case.

SEC.

ARTICLE 12.-CONTINUANCES.

1850. Affidavit of accused.
1851. Application by prosecutor.

SEC.

1852. Discharge for delay.
1853. May refuse to discharge.

[1881 S., p. 114. In force September 19, 1881.]

1850. (1781.) Affidavit of accused.-206. A motion by the defendant to postpone the trial on account of the absence of evidence can be made only on affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if the postponement be asked on account of an absent witness, the affidavit must show the name and residence of the witness, if known, and the probability of procuring his testimony within a reasonable time; and if the witness reside out of the state, the affidavit must contain a request by the defendant for leave of the court to take the deposition of such witness, with his consent that an entry may be made of record that the deposition of wit

nesses residing out of the state may be taken and read on behalf of the state relative to the same matter. The affidavit must further show that the absence of such witness has not been procured by the act or connivance of the defendant, nor by others at his request, nor with his knowledge and consent, and what facts he believes the witness will testify to, and that he believes them to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured. If, thereupon, the prosecuting attorney will admit the truth of the facts which the defendant, in his affidavit for a continuance, alleges that he can prove by the absent witness, or by the written or documentary evidence therein specified and described, the trial shall not be postponed for that cause.

See section 414.

An affidavit for a continuance on account of an absent witness should give the residence of the witness, and show the probability of obtaining his testimony. Beavers v. State, 58 Ind. 530; Railway Co. v. Dickerson, 59 Ind. 317.

The affidavit should state that the witness is competent to testify, and set forth the facts to which he will testify. French v. Blanchard, 16 Ind. 143; Warner v. State, 114 Ind. 137.

The affidavit must specifically set forth the facts showing the diligence used to obtain the absent evidence. Pence v. Christman, 15 Ind. 257; McKinlay v. Shank, 24 Ind. 258; Leary v. Nave, 66 Ind. 220.

Confinement in jail is no excuse for not using diligence to obtain desired evidence. Burchfield v. State, 82 Ind. 580.

When witnesses live in another state diligence should be used to obtain their depositions. McDermott v. State, 89 Ind. 187; Jones v. State, 11 Ind. 357.

The affidavit must show that the absence of the witness was not procured by the act, connivance, consent or knowledge of the defendant. Beavers v. State, 58 Ind. 530. The affidavit must contain all the necessary facts, reference to other instruments not being allowed. Sutherlin v. State, 108 Ind. 389.

A motion for a continuance must be determined by the facts set forth in the affidavit. Cutler v. State, 42 Ind. 244.

Postponement of a trial during term can only be demanded for cause shown by affidavit. Morris v. State, 104 Ind. 457.

When a sufficient showing is properly made for a continuance, the trial should be postponed. Jenks v. State, 39 Ind. 1; Cutler v. State, 42 Ind. 244.

Applications for a continuance are addressed to the sound discretion of the court. Wassels v. State, 26 Ind. 30.

A second application on the same ground for a continuance at the same term will scarcely be tolerated. McCorkle v. State, 14 Ind. 39.

If a cause is continued to take a deposition, a second application on the same ground must show why the deposition was not taken. Sutherlin v. State, 108 Ind. 389.

A continuance can not be granted to obtain impeaching testimony. Beavers v. State, 58 Ind. 530.

If the state admits the truth of the facts set forth in the affidavit a continuance should not be granted. McLaughlin v. State, 8 Ind. 281; Wassells v. State, 26 Ind. 30; Miller v. State, 9 Ind. 340; Powers v. State, 80 Ind. 77.

If the state admits the affidavit as evidence, the whole affidavit may be read. Wheeler v. State, 8 Ind. 113.

When the state admits the truth of the facts stated in the affidavit, the absent witness can not be impeached by the state, nor the facts contradicted. Powers v. State, 80 Ind. 77; Burchfield v. State, 82 Ind. 580.

If the state admits the truth of the facts stated in the affidavit for the purpose of trial, the defendant can not, at a subsequent trial, use the affidavit even though the absent witness has died. Powers v. State, 87 Ind. 144.

A continuance as to one will not work a continuance as to other joint defendants. White v. State, 31 Ind. 262.

Refusing to grant a continuance is not cause for a new trial, but must be assigned as error in the supreme court. Sturm v. State, 74 Ind. 278. See Westerfield v. Spencer, 61 Ind. 339.

1851. (1782.) Application by prosecutor.-207. Whenever the prosecuting attorney desires to obtain a postponement of the trial of a criminal cause on account of the absence of any witness whose name is indorsed on the indictment, such continuance shall be granted on his official statement in manner and form as specified in the preceding section; but the defendant may require the same to be in writing. If the defendant will admit that the facts which the prosecutor states he expects to prove are true, the trial shall not be postponed for that cause. And no defendant shall be detained in jail, without a trial, on an indictment or information, for a continuous period embracing more than two terms after his arrest and commitment thereon; or if he was in jail at the time the indictment was found or information filed, more than two terms after the term at which the indictment was found or the information first filed; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during said terms.

In an application by the state for a continuance to procure evidence, diligence must be shown to obtain such evidence. State v. Place, 127 Ind. 194.

Failure of the grand jury to return an indictment against a person recognized to appear at such term, will not acquit such person, nor prevent his being recognized to appear at a subsequent term. State v. Boswell, 104 Ind. 541.

The decision of the court as to the right of a defendant to be discharged is conclusive in a proceeding by him by writ of habeas corpus to obtain a discharge. McGuire . Wallace, 109 Ind. 284.

1852. (1783.) Discharge for delay.-208. No person shall be held by recognizance to answer an indictment or information, without trial, for a period embracing more than three terms, not including a term at which a recognizance was first taken thereon, if taken in term time; but he shall be discharged unless a continuance be had upon his own. motion, or the delay be caused by his act, or there be not sufficient time to try him at such third term; and in the latter case, if he be not brought to trial at such third term, he shall be discharged.

1853. (1784.) May refuse to discharge.-209. If when application be made for the discharge of a defendant under either of the last two sections, the court be satisfied that there is evidence for the state, which can not then be had, that reasonable effort has been made to procure the same, and that there is just ground to believe that such evidence can be had at the next term, the cause may be continued, and the prisoner remanded or admitted to bail; and if not brought to trial by the state, at the next term, he shall then be discharged.

See McGuire v. Wallace, 109 Ind. 281.