of the state prison shall certify in writing to the warden that in his opinion such female is pregnant, the warden shall forthwith give notice to the judge of the circuit court of the county in which said prison is located, and shall also deliver a copy of such certificate of such physician to said judge, who shall thereupon appoint a time at which an inquiry into said pregnancy shall be had at the state prison, and the sheriff of said county shall thereupon summon a jury of six impartial men to meet at such state prison on the appointed day for such inquiry, and shall also give immediate notice to the prosecuting attorney of such county of the time and place of such inquiry.

be

1951. (E. S. 377.) Inquiry Finding.-11. The judge, prosecuting attorney and clerk of said circuit court shall attend said inquiry, and the clerk shall keep a record of the proceedings. Witnesses may produced and examined before the jury. The findings shall be in writing, signed by the foreman of the jury and filed in the office of the clerk of the county in which such state prison is located.

1952. (E. S. 378.) Execution suspended.-12. If it appears by such finding that such female prisoner is with child, the warden shall suspend the execution of her sentence, and shall transmit a copy of such finding and of the record of the proceedings had before such jury, duly certified by such clerk, under the seal of said court, to the governor, who, on being satisfied that such woman is no longer pregnant, shall issue a warrant appointing a day for her execution.

1953. (E. S. 379.) Compensation of warden.-13. The warden conducting the execution shall be allowed therefor the sum of fifty dollars, to be paid him out of the treasury of the county in which judg ment of execution was rendered, and the auditor of such county shall draw his warrant for said sum, payable to said warden upon the certificate of the clerk of said county, showing the return by said warden of the death warrant, with execution of sentence indorsed thereon.

1954. (1881.) To supreme court.-303. An appeal to the supreme court may be taken by the defendant as a matter of right, from any judgment in a criminal action against him, in the manner and in the cases prescribed herein; and, upon the appeal, any decision of the court or intermediate order made in the progress of the case may

reviewed.

be

In order to have questions reviewed by the supreme court the proper steps must be taken to reserve such questions as prescribed by statute. Hornberger v. State, 5 Ind. 300. Appeals can only be taken from final judgments. Farrel v. State, 7 Ind. 345; Miller v. State, 8 Ind. 325; Wingo v. State, 99 Ind. 343; State v. Evansville, etc., Co., 107 Ind. 581.

The defendant can only appeal when there is a judgment rendered against him. Musselman v. State, 33 Ind. 267.

If the defendant escapes, he can not, while at large, prosecute an appeal. Sargent v. State, 96 Ind. 63.

If the defendant pleads guilty to an insufficient indictment, he may appeal and question the sufficiency of the indictment for the first time in the supreme court. Henderson v. State, 60 Ind. 296; O'Brien v. State, 63 Ind. 242; Arbintrode v. State, 67 Ind. 267; Hays v. State, 77 Ind. 450; Pattee v. State, 109 Ind. 545.

Errors must be assigned in the supreme court as in civil cases. Ind. 278.

Sturm v. State, 74

The assignment of error must clearly indicate the ruling complained of. Dye v. State, 130 Ind. 87.

Whatever is cause for a new trial can not be made an independent assignment of error. Wagner v. State, 63 Ind. 250.

1955. (1882.) By state-Causes.-304. Appeals to the supreme court may be taken by the state in the following cases, and no other: First. Upon a judgment for the defendant, on quashing or setting aside an indictment or information.

Second. Upon an order of the court arresting the judgment.
Third. Upon a question reserved by the state.

See section 1915, and notes.

The state can not in any manner by an appeal have a question of fact reviewed. State v. Hall, 58 Ind. 512; State v. Van Valkenburg, 60 Ind. 302; State v. Rousch, 60 Ind. 304; State v. Campbell, 67 Ind. 302; State v. Overholser, 69 Ind. 144.

When the state appeals on account of a refusal to give instructions it must appear that there was evidence to which the instructions were applicable. State v. Kern, 127 Ind. 465.

The state can only appeal when the defendant is acquitted, and the fact must be shown by the record. State v. Hamilton, 62 Ind. 409; State v. Hallowell, 91 Ind. 376; State v. Spencer, 92 Ind. 115.

An appeal may be taken by the state from the quashing of an indictment without a bill of exceptions. State v. Day, 52 Ind. 483.

If one count of an indictment is quashed and the cause is pending on another count the state can not appeal. State v. Evansville, etc., Co., 107 Ind. 581.

If an indictment is quashed the state may appeal, although the defendant is retained in custody to answer another charge. State v. Allen, 94 Ind. 441.

1956. (1883.) Transcript on appeal by state.-305. In case of an appeal from a question reserved on the part of the state, it shall not be necessary for the clerk of the court below to certify, in the transcript, any part of the proceedings and record except the bill of exceptions and the judgment of acquittal. When the question reserved is defectively stated, the supreme court may direct any part of the proceedings and record to be certified to them.

The appeal should not be dismissed because the record is imperfect, but the complaining party should take steps to have the record perfected. State v. Weil, 89 Ind.

It is not the duty of the supreme court of its own motion to direct the perfection of the record. State v. Hallowell, 91 Ind. 376.

The indictment, information or affidavit which constitutes the basis of the prosecution, need not be made a part of the record by a bill of exceptions. State v. Vanderbilt, 116 Ind. 11.

1957. (1884.) Effect when state appeals.-306. An appeal taken by the state in no case stays or affects the operation of the judgment in favor of the defendant, until the judgment is reversed.

1958. (1885.) Appeal when.-307. All appeals must be taken within one year after the judgment is rendered, and the transcript must be filed within ninety days after the appeal is taken.

If the appeal is not taken and the transcript filed within the time limited, the appeal will be dismissed. Lichtenfels v. State, 53 Ind. 161; Winsett v. State, 54 Ind. 437; McLaughlin v. State, 66 Ind. 193; Buell v. State, 69 Ind. 125; Farrell v. State, 85 Ind. 221. The appeal is deemed taken by the service of notice of appeal, and the time for filing transcript then begins to run. Winsett v. State, 54 Ind. 437; Farrell v. State, 85 Ind. 221.

An appearance and joining issue waives the right to have an appeal dismissed because not perfected in time. State v. Walters, 64 Ind. 226.

The defendant is entitled to a transcript without prepayment of the fees therefor. State v. Wallace, 41 Ind. 445.

1959. (1886.) Any defendant may appeal.-308. When several defendants are tried jointly, any one or more of them may take an appeal; but those who do not join in the appeal shall not be affected thereby.

1960. (1887.) How taken.-309. An appeal by the state is taken by the service of a written notice upon the clerk of the court where the judgment was rendered, stating that the appellant appeals to the supreme court from the judgment; and a similar notice must be served upon the defendant or his attorney; if neither can be found, then by posting up such notice three weeks in the clerk's office, in a conspicuous place. If the appeal is taken by the defendant, a similar notice. must be served upon the prosecuting attorney. The parties may waive such written notice, or enter, in writing, their appearance to such appeal.

An appearance, joinder in error and submission of a cause is a waiver of notice. Summers v. State, 51 Ind. 201; Beck v. State, 72 Ind. 250.

An appeal is deemed taken from the time of service of the notice of the appeal. Winsett v. State, 54 Ind. 437; Price v. State, 74 Ind. 553.

An appeal can only be taken by service of notice; the praying of an appeal in term time is ineffectual. McLaughlin v. State, 66 Ind. 193.

When the defendant appeals it is not necessary to serve notice upon the clerk. Darr v. State, 82 Ind. 11.

Under the statute of 1852 it was held that a notice of appeal could not be served upon a defendant in any county except the county where the trial was had. State v. Quick, 73 Ind. 147.

If a transcript is filed in the supreme court, and notice then given of the appeal, all of which is done within a year after judgment, it is sufficient. Beggs v. State, 122 Ind. 54. 1961. (1888.) By defendant.-310. An appeal to the supreme court

from a judgment of conviction does not stay the execution of the sentence, except where the punishment is to be death, or the judgment is for a fine or a fine and costs only; in which cases the execution of the sentence may be stayed by an order of the supreme court or a judge thereof. Where the punishment is to be imprisonment, with a fine and costs also, the execution of the sentence as to the fine, or the fine and costs only, may in like manner be stayed. In the case of an appeal from a judgment in a capital case, the order of suspension shall specify the day unto which the execution of the sentence is stayed.

The governor alone has power to grant reprieves, commutations and pardons, and so much of this section as authorizes the supreme court, or a judge thereof, to suspend sentence of death, is unconstitutional. Butler v. State, 97 Ind. 373.

1962. (1889.) Trial of appeal.-311. An appeal shall stand for trial immediately after filing the transcript and the notice of appeal, if the supreme court is in session; if not in session, at the next term thereof. Appeals from judgments, in capital cases, shall have the precedence of all others.

1963. (1890.) Informality not ground for dismissal.-312. An appeal shall not be dismissed for any informality or defect in taking an appeal, if the same be corrected in a reasonable time. After an appeal has been dismissed, another appeal may be taken within the

year.

Motions to dismiss appeals on purely technical grounds must be made on the first appearance of the moving party. Walker v. Hill, 111 Ind. 223.

1964. (1891.) To disregard technical errors.-313. In the consideration of the questions which are presented upon an appeal, the supreme court shall not regard technical errors or defects or exceptions to any decision or action in the court below, which did not, in the opinion of the supreme court, prejudice the substantial rights of the defendant.

Failure to call names of jurors on return of a verdict is no cause for reversal. Short v. State, 63 Ind. 376; Norton v. State, 106 Ind. 163.

The admission of improper evidence which could not harm the accused is no cause for reversal. Binns v. State, 66 Ind. 428; Powers v. State, 87 Ind. 144. Refusal to allow the defendant to waive an arraignment is harmless error. State, 92 Ind. 269.

Wood v.

When there is doubt of the guilt of the defendant, what may usually be regarded as harmless errors will have weight in causing a reversal of the judgment. Riley v. State, 95 Ind. 446.

Failure of the foreman of a jury to sign a verdict before separation of the jury, when a sealed verdict is ordered, will not be cause for reversing a judgment. Clayton v. State, 100 Ind. 201.

Where the verdict is right upon the evidence, abstract and practically harmless errors will be disregarded. Epps v. State, 102 Ind. 539; Strong v. State, 105 Ind. 1; Galvin v. State, 93 Ind. 550.

Stating to the jury by the court of the manner of forming the issue is erroneous, but it is a harmless error. Henning v. State, 106 Ind. 386.

This statute may render indictments or informations good on motions in arrest of judgment, that might be held bad on motions to quash. Nichols v. State, 127 Ind. 406.

Clerical errors in informations will be regarded as harmless. Trout v. State, 107 Ind.

578.

Failure to prove with exactness unnecessary allegations will not be cause for reversal. Taylor v. State, 130 Ind. 66.

The record must show that the error complained of was injurious to the defendant, or it will be regarded as harmless. Skaggs v. State, 108 Ind. 53.

If there is a charge of an assault and battery with intent to commit a felony, and there is proof only of an assault with intent, a finding and judgment for an assault and battery with the intent will be upheld. Keeling v. State, 107 Ind. 563.

1965. (1892.) Power of supreme court.-314. The supreme court may reverse, modify, or affirm the judgment appealed from, and may, if necessary or proper, order a new trial. In either case, the cause must be at once remanded to the court below, with proper instructions, and the opinion of the supreme court shall also be immediately certified to the court below.

When the only error in the judgment is that a portion of the punishment is illegal, the supreme court may affirm the judgment as to the legal punishment and direct the lower court to strike out the illegal portion. Kennedy v. State, 62 Ind. 136.

1966. (1893.) Rehearing.—315. A rehearing in criminal cases may be allowed as in civil cases.

1967. (1894.) Opinion must be written and recorded.-316. All opinions of the supreme court in criminal prosecutions must be given in writing and recorded in the order-book.

1968. (1895.) Judgment of supreme court.-317. When a judgment against the defendant is reversed, and it appears that no offense whatever has been committed, the supreme court must direct that the defendant be discharged; but if it appear that the defendant is guilty of an offense, although defectively charged in the indictment or information, the supreme court must direct the warden of the state prison, or the chief officer in charge of the penal or reformatory institution in which the defendant is confined, to cause the prisoner to be delivered over to the jailer of the proper county, there to abide the order of the court in which he was convicted.

It has been stated that if a defendant was convicted on a bad indictment, the supreme court would set him at liberty. Daily v. State, 10 Ind. 536.

1969. (1896.) Affirmance.-318. On a judgment of affirmance against the defendant, the original judgment must be carried into execution as the appellate court may direct.

SEC.

ARTICLE 22.-GENERAL PROVISIONS.

1970. Corporations punishable.

1971. Definitions.

1972. "Person" defined.

SEC.

1973. Laws and usages continued.
1974. Repealing and saving clauses.

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

1970. (1897.) Corporations punishable.-319. Corporations may be prosecuted by indictment or information, for erecting, continuing,