Recognizance how and when taken.

By whom.

Restrictions upon the privilege.

Order to remove the body, when made.

Duty of sheriff in obeying the order.

Transcr of the record to be made out, &c.

be filed by the clerk, with the petition, if any, as a part of the record in the cause.

SEC. 161. When such order shall be made, the defendant, if not in confinement or custody, shall enter into a recognizance, with sufficient sureties, for his appearance to answer the charge in the court to which the cause is to be removed, at the next term thereof, and not to depart such court without leave.

SEC. 162. Such recognizance may be taken by the court or judge making the order, or by any court or officer authorized by law to let to bail after indictment, and, when taken out of the court in which the cause is pending, shall be filed with the clerk thereof.

SEC. 103. No order for the removal of a cause shall be effectual in the case of any defendant, not in confinement or custody, unless a recognizance, taken as herein directed, be entered into in open court, or delivered with the order, and filed with the clerk of the court, nor unless such order be delivered before any juror is sworn in the cause; and, in no case, shall a second removal of any cause be allowed.

SEC. 164. If the defendant be in actual custody or confinement, the court or officer granting the order of removal shall also make an order commanding the sheriff to remove the body of the defendant to the jail of the county into which the cause is to be removed, and there deliver him to the keeper of such jail, together with the warrant or process by virtue of which he is imprisoned or held.

SEC. 165. The sheriff shall obey such order without unnecessary delay, and shall indorse on the commitment or process, by virtue of which the prisoner was in his custody, the reason of the change of custody, and shall deliver such warrant, with the prisoner, to the keeper of the jail of the proper county, who shall give such sheriff a receipt therefor, and take charge of and keep isoner in the same manner as if he had been originally ted to such jail.

SEC. 166. Whenever any order shall be made for the removal of any cause under the foregoing provisions, the clerk of the court in which the same is pending shall make out a full transcript of the record and proceedings in the cause, including the order of removal, the petition therefor, if any, and the recognizance of the defendant, and of all witnesses, and shall transmit the same, duly certified under the seal of the court, to the clerk of the court to which the removal in ordered.

in all respects as if it originated therein.

SEC. 167. On the receipt of such transcript by the clerk of Cause to proceed the court to which any cause is removed, he shall file the same as a record of his court, and the same proceedings shall be had in the cause in such court, in the same manner and in all respects as if the same had originated therein.

SEC. 168. If such transcript shall not be transmitted, or shall not be received at or before the first term of the court to which the cause is ordered to be removed, or if such transcript shall be lost or destroyed, the cause shall not, by reason thereof, be discontinued, but such transcript or another in lieu thereof, may be transmitted and filed, as required by this act, at or before the next succeeding term of such court, and proceedings thereon shall be had as if no such failure or loss had happened.

of

How to proceed if

transcript be not transmitted or re

ceived, &c.

witnesses under recognizance,

bound to attend

the trial, &c.

Src. 169. The defendent, and all witnesses, and others who Defendant and shall have entered into any recognizance to attend the trial such cause, having notice of the removal thereof, shall be bound to attend at the time and place of trial, in the county to which the cause is removed; and a failure to do so shall be deemed a breach of recognizance.

Order of removal nizance, when;

a notice to persons under recog

notice in writing

whea.

SEC. 170. When the order of removal is made in term, it shall be deemed a notice to every person who shall have entered into a recognizance to appear at such term; in other cases the notice shall be given, shall be in writing, signed by the prosecuting attorney or clerk of the court, and served on the person so recognized, in the manner provided by law for serving notices.

how adjusted and

SEC. 171. The costs and expenses necessarily incurred in the Costs of removal, removal of any such cause, under the foregoing provisions, shall taxed. be adjusted and allowed by the court wherein the cause is tried, and shall be taxed as other costs in such cause.

for neglect of du

SEO. 172. If any clerk of the district court shall neglect or Penalty on clerk refuse to perform any duty in relation to the removal of a cause ty. enjoined on him by the foregoing provisions, he shall forfeit and pay a sum not exceeding five hundred dollars, to be recovere action in the name and to the use of the Territory.

Soc. 173. Where there are several defendants in any indictment in a criminal prosecution, and the cause of the removal thereof exists only as to part of them, the other defendants shall be tried, and all proceedings had against them, in the county in which the case is pending, in all respects as if no order of removal had been made as to any defendant.

Proceedings when defendants, and

there are several

order of removal as to part only.

witnesses may be

SEC. 174. Whenever a criminal case shall be continued, all the On continuance, witnesses in attendance shall be called by the court, and as recognized."

many of them as the parties may desire, shall be required to enter into recognizance for their appearance at the next term at Penalty for non- which such case shall be set for trial; and, if any such witness shall fail to appear in said court when so called for the purpose of being recognized, such witness shall forfeit all his fees as witness in such cause, and may be compelled so to appear, by

attendance at next term.

Trial submitted

to court.

Jury for trial of aliens.

On indictment for trial of criminal

offence, in what

entitled to a peremptory challenge of jurors.

attachment.

Of Trials and Incidents thereto.

SEC. 175. The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court, except in capital cases; all other trials must be by a jury, to be selected, summoned and returned as prescribed by law.

SEC. 176. No alien shall be entitled to a jury of part aliens or strangers for the trial of any indictment, but in every case the jurors shall be such only as are qualified to serve according to the laws of this Territory.

SEC. 177. The defendant, in every indictment for a criminal cases defendant offence, shall be entitled to a peremptory challenge of jurors, in the following cases, as follows: First, If the offence charged is punishable with death or by imprisonment in the penitentiary not less than for life, to the number of twelve and no more: Second, If the offence be punishable by like imprisonment, not less than a specified number of years, and no limit to the duration of such imprisonment is declared, to the number of eight and no more: Third, In any other case punishable by imprisonment in the penitentiary, to the number of six and no more: Fourth, In cases not punishable with death or imprisonment in the penitentiary, to the number of four and no more.

Territory may challenge jurors.

Persons having conscientious scruples, shall

not serve as jurors.

When a person shall not act as juror.

Certain persons not competent jurors.

SEO. 178. In all criminal trials, the Territory may challenge, peremptorily, half the number of jurors allowed the defendant by the preceding section.

SEC. 179. If the offence charged be punishable with death, person entertaining such conscientious opinions as would preclude his finding the defendant guilty, shall not serve as a juror.

SEC. 180. No person who believes the punishments fixed by law to be too severe for the offence, or entertains any opinion that would preclude his finding the defending guilty, shall be sworn as a juror.

SEC. 181. Where any indictment alleges an offence against the person or property of another, neither the injured party or any person of kin to him, shall be a competent juror on the trial of

such indictment; nor shall any person of kin to the prosecutor or defendant in any case, serve as a juror on the trial thereof.

to serve as petit

SEO. 182. No person, who was a member of the grand jury Grand jurors not or inquest, by which any indictment or presentment was found Jarors in same in any cause, shall serve as a petit juror on the trial of such

cause.

case.

if challenged, &..

SEC. 183. No witness in any criminal case shall be sworn as Not to be sworn juror therein, if challenged for that cause before he is sworn; and if any juror shall know anything relative to the matter in issue, he shall disclose the same in open court.

SEC. 184. It shall be a good cause of challenge to a juror, that he has formed or delivered an opinion on the issue or any material fact to be tried; but, if it appear that such opinion is founded only on rumor, and not such as to prejudice or bias the mind of the juror, he may be sworn.

SEC. 185. All challenges for cause may be tried by the court on the oath of the person challenged or by triers on other evidence, and such challenges shall be made before the juror is sworn; but, if the cause of challenge be discovered after the juror is sworn, and before any part of the evidence is delivered, he may be discharged or not, in the discretion of the court.

What shall be a challenge to a ju

good cause of

ror.

challenges for

cause, how tried,

&c.

If cause discovered after juror is sworn, may be discharged.

Defendants to be

present at trial,

in person or by

attorney.

SEC. 186. No person indicted for a felony can be tried unless he be personally present during the trial, nor can any person, indicted for any other offence, be tried, unless he be present, either personally or by his counsel; and every person indicted, Admitted to make shall be admitted to make any lawful proof, by competent witnesses or other testimony, in his defence.

proof, &c.

regulated.

SEC. 187. The proceedings prescribed by law in civil cases in Proceedings, how respect to the impanneling of jurors, the keeping them together, and the manner of rendering their verdict, shall be had upon trials on indictments and prosecutions for criminal offences, except in cases otherwise provided by statute.

cases, in what ed to criminal procdedings.

SEC. 188. The provisions of law in civil cases relative to Law in civil compelling the attendance and testimony of witnesses, their ex- instances extendamination, the administration of oaths and affirmations and proceedings as for contempt, to enforce the remedies and protect the rights of parties, shall extend to criminal cases, so far as they are in their nature applicable thereto, subject to the provisions contained in any statute.

SEC. 189. Verdicts may be set aside, and new trials awarded, on the application of the defendant, and continuances may be granted to either party, in criminal cases, for like causes and under the like circumstances, as in civil cases.

Verdicts may be trials awarded

set aside, new

&c., as in civil cases.

Evidence of overt

acts of trials for treason, &c.

Proof necessary

to sustain an in

SEC. 190. In trials for treason, no evidence shall be given of any overt act that is not expressly laid in the indictment, and no conviction shall be had upon any indictment for such offence, unless one or more overt acts be expressly alleged therein.

SEC. 191. In trials for conspiracy, in those cases where an dictment for con- overt act is required by law to consummate the offence, no conviction shall be had unless one or more overt acts be expressly alleged in the indictment and proved on the trial; but other overt acts, not alleged in the indictment, may be given in evidence on the part of the prosecution.

Proof on indict

ment for rape, &c.

Evidence of existence, powers, &c.. of banking company or corpora tion.

Prosecutor or person injured, a competent wit

ncas.

Skillful persons

may be called to

forgery.

SEC. 192. Proof of actual penetration into the body shall be sufficient to sustain an indictment for rape, or for the crime against nature.

SEC. 193. If, on trial or other proceeding in a criminal cause, the existence, constitution or powers of any banking company or corporation shall become material, or be in any way drawn in question, it shall not be necessary to produce a certified copy of the charter or act of incorporation, but the same may be proved by general reputation or by the printed statute book of the State, government or country, by which such corporation was created.

SEC. 194. No person shall be rendered incompetent to testify in criminal causes by reason of his being the person injured or defrauded, or intended to be injured or defrauded, or that would be entitled to satisfaction for the injury, or is liable to pay the costs of the prosecution.

SEO. 195. Persons of skill or expert, may be called to testify testify in cases of as to the genuineness of a note, bill, draft, certificate of deposit, or other writing; but three witnesses, at least, shall be required to prove the fact, except in case of a larceny thereof.

Witnesses against persons for gaming not liable to indictment in such case.

When tried separately; when jointly.

Defendants may

file bills of excepbions; proccodings.

SEC. 196. Any person, called as a witness to testify against another for gaming, is a competent witness to prove the offence, although he may have been concerned as a party, and is compelled to testify as other witnesses, but he shall not be liable to indictment or punishment in any such case.

SEC. 197. When two or more defendants are jointly indicted for any felony, any one defendant requiring, it shall be tried separately; in other cases, defendants jointly indicted shall be tried separately or jointly, in the discretion of the court.

SEC. 198. On the trial of any indictment or prosecution for a criminal offence, exceptions to any decisions of the court may be made in the same cases and manner provided by law in civil cases, and bills of exception shall be settled, signed, sealed and