Action on recoguizance not to be defeated, &c., for certain irregularities. R. S. 135, § 30. 2 Greenl. 62. 9 Mass. 520. 12 Mass. 1. 16 Mass. 447. 9 Met. 407. 7 Gray, 316. ments on forfeit SECT. 49. Such action shall not be barred or defeated, nor shall judgment be arrested, by reason of neglect or omission to note or cord the default of any principal or surety at the term when it happens, nor by reason of a defect in the form of the recognizance, if it sufficiently appears from the tenor thereof, at what court the party or witness was bound to appear, and that the court or magistrate before whom it was taken was authorized by law to require and take such recognizance. SECT. 50. A court that has rendered judgment on a recognizance Review of judg the penalty of which is forfeited to the commonwealth, may on the peed recognizances; tition of any person interested grant a review and a rehearing of the case, 1852, 126, § 1. upon the surrender or recaption of the prisoner who was enlarged, or for any sufficient cause which has occurred or been ascertained by the person interested after the rendition of such judgment, or at such time as not to have afforded opportunity for presenting the same in evidence. SECT. 51. The petition, stating the grounds relied upon, shall be filed in court, and notice thereof with a copy given to or served on the attorney for the commonwealth for the county where the court is to sit, fourteen days at least before the term at which such hearing may be had, unless the attorney waives such notice or service. petition for. 1852, 126, § 2. Proceedings when former judgment is diminished; 1852, 126, § 3. when not diminished, &c. 1852, 126, § 4. Offences not SECT. 52. If it appears to the court that any part of such preceding judgment has been actually paid to or for the commonwealth upon the recognizance or judgment, and upon such review the court orders the judgment to be reversed or given for a less sum than has been so actually paid, the court may decree a sum equal to the difference between the amount actually paid and the amount so ordered, to be repaid to the party who paid the same or his legal representatives; and the treasurer or other officer of the commonwealth who received or then has the same, shall, on presentation of proper evidence of authority therefor, repay the same accordingly. SECT. 53. If upon such petition the review is not granted, or the original judgment is not altered, the court may award reasonable costs for the commonwealth against the petitioner. SECT. 54. The offences of treason, rape, and arson shall not be bailable. CHAPTER 171. OF INDICTMENTS, PROSECUTIONS, AND PROCEEDINGS BEFORE TRIAL. SECTION 29. Prisoner refusing to plead. Need not be asked 30. When persons in prison under an indictment SECTION 32, Commission to examine witnesses, how 33. Such commissions, how executed, and deposi- 34. Civil remedies not barred by proceedings in 1840, 74. 101 Mass. 16. SECTION 1. The clerk of the superior court for each county, not less Grand jurors; than seven nor more than thirty days before the commencement of the RS. 186, § 1. first term of the court in each year, shall issue writs of venire facias, See 1860, 143. in each county, for twenty-three grand jurors to be returned to that 14 Gray, 335. court, who shall be held to serve at each term thereof throughout the year, and until another grand jury is empanelled in their stead: except that in the counties where terms of the court are established for the transaction of criminal business, grand jurors shall be required to attend only at such terms. SECT. 2. The clerk of the superior court for criminal business, not less than seven nor more than fourteen days before each term commencing on the first Mondays of January and July, shall issue writs of venire facias for twenty-three grand jurors to serve in said court, twentytwo of whom shall be drawn and returned from the city of Boston, and one from Chelsea, North Chelsea, or Winthrop, who shall be held to serve for each term thereof for six months and until another grand jury is empanelled in their stead. in Suffolk. 1844, 44, 3. 1852, 53. See 1860, 148. Who grand ju SECT. 3. Grand jurors shall be drawn, summoned, and returned, in Same subject. i the same manner as jurors for trials; and when drawn at the same time rors, and who with jurors for trials, the persons whose names are first drawn, to the jurors for trials. number required, shall be returned as grand jurors, and those afterwards See Ch. 132. drawn shall be jurors for trials. R. S. 136, § 3. ficiency in, how SECT. 4. In case of deficiency of grand jurors in any court, writs of Grand jurors, devenire facias may be issued to the constables of such cities or towns as supplied; the court may direct, to return forthwith such further number of grand R. S. 186, § 4. jurors as may be required. how empanelled and sworn; SECT. 5. The clerk of the court shall prepare an alphabetical list of the names of all persons returned as grand jurors, and when they are R. S. 136, § 5. to be empanelled, the two persons first named thereon shall be first called, and the following oath shall be administered to them: — do You, as grand jurors of this inquest for the body of this county of solemnly swear, that you will diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge; the commonwealth's counsel, your fellows', and your own, you shall keep secret; you shall present no man for envy, hatred, or malice, neither shall you leave any man unpresented for love, fear, favor, affection, or hope of reward; but you shall present things truly, as they come to your knowledge, according to the best of your understanding; so help you, God. The other jurors shall then be called in such divisions as the court may deem proper, and the following oath shall be administered to them: The same oath which your fellows have taken on their part, you, and each of you, on your behalf, shall well and truly observe and keep; so help you, God. SECT. 6. When a person returned as grand juror is conscientiously scrupulous of taking the oath before prescribed, he shall be allowed to make affirmation, substituting the word "affirm" instead of the word "swear" and also the words, "this you do under the pains and penalties of perjury," instead of the words, "so help you, God.” R. S. 136, § 7. SECT. 7. After the grand jurors have been empanelled and received Foreman: their charge from the court, they shall retire with the officer appointed to attend them, and before proceeding to discharge their duties, elect by ballot one of their number to be foreman, and give notice thereof to the court, and the clerk shall record the same. 116m 61 SECT. 8. The foreman elected at the first term shall be foreman for duty and Foreman pro tempore. term of service of the whole period they are required to serve, but in his absence another foreman shall be elected in the same manner, who shall perform the duties during such absence, and in case of the death of the foreman, for the residue of their term of service. R. S. 136, § 8. Who may swear witnesses before the grand jury. List of witnesses. R. S. 136, § 9. 4 Gray, 5. Grand jury may appoint clerk. SECT. 9. The foreman of the grand jury, or the prosecuting officer before them, may administer oaths and affirmations in the manner prescribed by law, to witnesses who appear to testify before the jury, and the foreman shall under his hand return to the court a list of all witnesses sworn before the grand jury during the term, which shall be filed of record by the clerk. SECT. 10. The grand jury may appoint one of their number to be Minutes of clerk; clerk, to preserve minutes of the proceedings before them, which minutes when the jury so direct shall be delivered to the attorney-general or district-attorney. R. S. 136, § 10. may be resummoned at same term. R. S. 136, § 11. Grand jurors, &c., not to dis SECT. 11. When the grand jury are dismissed before the court is adjourned without day, they may be summoned to attend again in the same term, at such time as the court directs for the despatch of any business that may come before them. SECT. 12. No grand juror or officer of the court shall disclose the fact that an indictment for felony has been found against any person not dictment found; in custody or under recognizance, otherwise than by issuing or executing close fact of in R. S. 136, § 12. not to testify how members voted, &c. R. S. 136, § 13. 11 Cush. 137. 12 Gray, 167. Prisoner not indicted, when to be discharged; R. S. 136, § 14. discharged as insane, &c. R. S. 133, § 15. 1853, 318,$1. 1856, 247, § 3. process on the indictment. SECT. 13. No grand juror shall be allowed to state or testify in any court, in what manner he or any other member of the jury voted on any question before them, or what opinion was expressed by any juror in relation to such question; and in charging the grand jury, the court shall remind them of the provisions of this and the preceding sections. SECT. 14. Any person held in prison on a charge of having committed a crime, shall be discharged if he is not indicted before the end of the second term of the court at which he is held to answer, unless it appears to the satisfaction of the court that the witnesses on the part of the government have been enticed or kept away, or are detained and prevented from attending the court by sickness or some inevitable accident, and except in the case provided for in the following section. SECT. 15. (R.) [When a person held in prison on a charge of having committed an indictable offence is not indicted by the grand jury by reason of insanity, they shall certify the fact to the court, and thereupon, if his discharge or going at large is deemed manifestly dangerous to (R.) Repeal and the peace and safety of the community, the court may order him to be committed to one of the state lunatic hospitals; otherwise he shall be discharged.] See Ch. 73, 8. substitute. 1862, 223, §§ 17, 18. Special acts, &c., need not be set &c. SECT. 16. In a complaint, prosecution, or other process, founded on out in complaint, a special act of the legislature, an ordinance or by-law of any city or town, or an order of the mayor and aldermen, it shall be sufficient to set forth the offence fully, plainly, substantially, and formally; and no part of such law, ordinance, by-law, or order, need be set forth. 1838, 181, § 4. 1946, 95, § 15. lines, and on the sea. R. S. 133, § 7. 2 Allen, 502. Indictment where injury is in one county and death in another; R. S. 133, § 8. 191 Mass. 10. for offences committed at sea SECT. 17. An offence committed on the boundary of two counties, or within one hundred rods of the dividing line between them, may be alleged in the indictment to have been committed, and may be prosecuted and punished, in either county. An offence committed upon the sea within one league of the shore may be prosecuted and punished in the adjacent county. SECT. 18. If a mortal wound is given, or other violence or injury inflicted, or poison is administered, in one county, by means whereof death ensues in another county, the offence may be prosecuted and punished in either county. SECT. 19. If a mortal wound is given, or other violence or injury or out of state, inflicted, or poison is administered, on the high seas, or on land either within or without the limits of this state, by means whereof death &c. ensues in any county thereof, such offence may be prosecuted and pun- R. S. 133, § 9. ished in the county where the death happens. criminal prose See Ch. 63, § 99. SECT. 20. An indictment for the crime of murder may be found at Limitation of any period after the death of the person alleged to have been murdered; cutions. all other indictments shall be found and filed within six years after the R. S. 136, § 16. commission of the offence; but any period during which the party Ch. 83, § 3. charged was not usually and publicly resident within this state, shall 89163, not be reckoned as part of the six years. § 22; 165, §§ 2, SECT. 21. If the grand jury find and return to the court an indictment for a crime punishable with death, process shall be forthwith issued for the arrest of the party charged, if he is not already in R. S. 82, § 27. custody. R. S. 136, § 17. 1844, 44, § 4. copy of, to be 19. SECT. 22. (R.) [As soon as may be after the finding of such indictment, the party charged, when in custody, shall be served with a copy served; 846. thereof by the sheriff or his deputy, with an order of the court notifying R. S. 82.8 26. him, if the indictment is found in the county of Dukes County, that the R. S. 136, §§ 18, indictment will be entered at the supreme judicial court next to be held 1844, 44, § 4. in the county of Barnstable, and if found in any other county, at the See Ch. 112, term of said court next to be held for the same county, or in either $$ 9, 20-25. case at any intermediate time before the next term of the court, when (R), Repeal and the court may be in session in the county.] 5 Cush. 397. substitute. chief justice of SECT. 23. (R.) [The clerk of the superior court, when such an in- notice of, to dictment is found, shall forthwith give notice thereof to the chief or first s. J. C.; justice of the supreme judicial court, and shall transmit the indictment R. S. 82, § 26 to said court, at the next term or any intermediate time, as mentioned 20. R. S. 136, §§ 18, 1844, 44, § 4. in the preceding section, where it shall be entered. The supreme judi- 1859, 196 cial court shall have cognizance and jurisdiction thereof, and proceed- 5 Cush. 397. ings shall be had thereon, in the same manner as if the indictment had been found in that court.] (R.) Repeal and substitute. 1869, 433 prisoner to have copy of, 1859, 196, § 21. 104 Mass. 538. prisoners en SECT. 24. Any prisoner indicted for a crime punishable with death, or imprisonment for life in the state prison, shall, on demand upon the clerk by himself or his counsel, have a list of the jurors returned de- RS. 136, § 23. livered to him, and shall also have process to summon such witnesses as 13 Mass. 501. are necessary to his defence, at the expense of the commonwealth. SECT. 25. Every person indicted for an offence for which he may be What other imprisoned in the state prison, if he is under recognizance or in custody titled to copy to answer for such offence, shall be entitled to a copy of the indictment and all indorsements thereon, without paying fees therefor. SECT. 26. The attorney-general and other prosecuting officers may in all cases issue subpoenas for witnesses to appear and testify on behalf of the commonwealth, and the subpoena, under the hand of such officer, shall have the same force, and be obeyed in the same manner, and under the same penalties in case of default, as if issued by the clerk. of indictment. R. S. 136, § 24. Prosecuting of ficers may issue subpoenas. R. S. 136, § 25. state not en Payment of SECT. 27. Witnesses summoned in behalf of the commonwealth Witnesses for shall be bound to attend without the payment of fees, and shall be pun- titled to fees in ishable for non-attendance; but if they satisfy the court of their inabil- advance, &c. ity to defray their expenses, the court shall order their fees which have witness fees. R. S. 136, § 26. accrued to be paid, and may make such further order for the payment 1859, 62. of their fees as may be deemed reasonable. The court may at each term pass a general order for the payment of the fees of such wit nesses. prosecutions to party in SECT. 28. When an indictment is found against a person for an as- What criminal sault and battery or other misdemeanor for which the party injured may may be stayed have a remedy by civil action, except where the offence was committed upon reparation by or upon a sheriff or other officer of justice, or riotously, or with jured. intent to commit a felony, or is punishable by imprisonment in the state Rs. 136, § 27. prison, if the party injured appears in court where the indictment is See Ch. 170, § 33. pending, and acknowledges satisfaction for the injury sustained, the 1133 court may, on payment of the costs accrued, order all further pro 1845. 198. Prisoner refusing to plead. Need not be asked how he ceedings to be stayed, and discharge the defendant from the indictment, which shall forever bar all remedy for such injury by civil action. SECT. 29. If on arraignment a person refuses to plead or answer, or does not confess the indictment to be true, the court shall order a plea of not guilty to be entered, and thereupon the proceedings shall be the R. S. 136, §§ 28, same as if he had pleaded not guilty. It shall not be necessary in any case to ask a prisoner how he will be tried. will be tried; 29. 10 Met. 222. 12 Allen, 155. 13 Allen, 568. when to be SECT. 30. Every person held in prison upon an indictment shall, if' he requires it, be tried at the next term of the court after the expiration of six months from the time when he was imprisoned, or shall be bailed upon his own recognizance, unless it appears to the satisfaction of the court that the witnesses on behalf of the government have been enticed or kept away, or are detained and prevented from attending the court by sickness or some inevitable accident. SECT. 31. When to an indictment a plea in abatement or other dilatory plea is offered, the court may refuse to receive such plea, until its truth is proved by affidavit or other evidence. SECT. 32. When upon an indictment an issue of fact is joined, the court may, on application of the defendant, grant a commission to examine any material witnesses residing out of this state, in the same manner as in civil causes; the prosecuting officer may if he sees fit join in such commission, and name any material witnesses to be examined on the part of the commonwealth. SECT. 33. When such commission is issued, the interrogatories to be annexed thereto shall be settled, and the commission executed and returned, in the manner prescribed by law in relation to commissions in civil cases, and the depositions taken thereon and returned shall be read in the same cases, with the like effect and subject to the same exceptions, as in civil cases: provided, that when the defendant declines to use on his trial the deposition so taken, the prosecuting officer shall not make use of any deposition taken on the part of the commonwealth, without the defendant's consent. SECT. 34. No proceedings against a person for a criminal offence shall prevent or bar any civil action which might otherwise be maintained by a party aggrieved by the commission of the offence. Issues of fact, how tried. R. S. 137, § 1. 12 Allen, 155. SECTION 1. Issues of fact joined upon indictments shall be tried by a jury drawn and returned in the manner prescribed by law for the trial of issues of fact in civil causes. |