SECT. 2. No member of the grand jury which has found an in- No grand juror to dictment shall be put upon the jury for the trial thereof. be on trial jury. 1869, 151. 1875-167 1873,377 M. 439 SECT. 3. Every person indicted for an offence, and the attorney-gen- Challenges; eral, or other officer prosecuting an indictment on behalf of the com- See Ch. 132, § 30. R. S. 137, §§ 3, 4. monwealth, shall, when the jury is empanelled for the trial, be entitled See 1862, 84. to the challenges allowed by law to parties in civil causes. SECT. 4. A person put on trial for an offence punishable with death, when allowed: or imprisonment for life in the state prison, shall be allowed to challenge R. S. 137, § 5. peremptorily twenty of the persons returned as jurors, and no more. SECT. 5. No person whose opinions are such as to preclude him from What opinions finding a defendant guilty of an offence punishable with death, shall be in capital cases. compelled or allowed to serve as a juror on the trial of an indictment for such offence. SECT. 6. The following oath shall be administered to the jurors for the trial of all criminal cases not capital: - You shall well and truly try the issue between the commonwealth and the defendant, (or the defendants, as the case may be,) according to your evidence; so help you, God. In capital cases the following oath shall be administered to the jurors: You shall well and truly try, and true deliverance make, between the commonwealth and the prisoner at the bar, whom you shall have in charge, according to your evidence; so help you, God. 1859, 196, 21. 1875.167 disqualify jurors R. S. 137, § 6. Oaths of jurors. R. S. 137, § 7. jurors. SECT. 7. A juror who is conscientiously scrupulous of taking either Affirmation of of the oaths above prescribed, shall be allowed to make affirmation, sub- R. S. 137, § 8. stituting the words, "this you do under the pains and penalties of perjury," instead of the words, "so help you, God." When defendant 1852, 37, § 1. Court may order SECT. 8. No person indicted for a felony shall be tried unless per- is to be present at sonally present during the trial; persons indicted for smaller offences trial, &c. may at their own request, by leave of the court, be put on trial in their absence, by an attorney duly authorized for that purpose. SECT. 9. The court may order a view by a jury empanelled to try a criminal case. SECT. 10. (R.) [In all criminal prosecutions in which the defendant Defendant must relies for his justification upon any written license, appointment, or cer- 1844, 102. tificate of authority, he shall prove the same, and until such proof, the 155 16 presumption shall be that he is not so authorized.] 5 Cush. 298. R. S. 137, § 10. prove license. (R.) Repeal and of libel. 4 Mass. 163. 9 Met. 410. 10 Cush. 69. 12 Cush. 502. 8 Gray, 459. 9 Gray, 137. 13 Gray, 73 2 Allen, 292. 7 Allen, 360. 1864,121. SECT. 11. In a prosecution for writing or publishing a libel, the Defence in cases defendant may give in evidence in his defence upon the trial, the truth R. s. 133, § 6. of the matter contained in the publication charged as libellous, and 1855, 396. such evidence shall be deemed a sufficient justification, unless malicious 3 Pick. 304. intention is proved. SECT. 12. In the prosecution of offences in relation to or affecting Proof of ownerreal or personal estate, it shall be sufficient, and shall not be deemed a ship of property. R. S. 133, § 11. variance, if it is proved on the trial, that at the time when the offence 1 Mass. 476. was committed, either the actual or constructive possession, or the gen- 10 Met. 422. 14 Mass. 217. 110 m. 503. eral or special property, in the whole or any part of such real or per- Gray, 489. /// Mh. 3942 sonal estate, was in the person or community alleged to be the owner 5 Allen, 517. thereof. 104 Mass. 552. 11 Allen, 110. SECT. 13. When an offence is alleged to have been committed in the night time, the time called night time shall be deemed to be the time between one hour after the sun-setting on one day and one hour before sun-rising on the next day; and in all cases the time of sun-setting and sun-rising shall be ascertained according to mean time in the place where the offence is committed. 103 Mass. 425, 435. SECT. 14. When a person indicted is at the time appointed for the trial found to the satisfaction of the court to be insane, the court may cause him to be removed to one of the state lunatic hospitals for such a term and under such limitations as they may direct. See 1864, 288, § 10. 9 10 Time included in "night time." 1847, 13. 1 Gray, 495. Prisoner found insane to be sent to hospital. 17136277 113 m. 1 12 Pick. 507. 2 Met. 193. 10 Gray, 11. on acquittal by R. S. 137, § 12. ble for fees, &c. Certain defects of ate indictments. 1858, 23. 6 Greenl. 148. 7 Mass. 9. 11 Mass 279. 4 Cush. 141. See 1864, 250. Prosecutions 11 Gray, 4. 12 Gray, 29. 6 Allen, 448. 9 Allen, 276. SECT. 15. The jury shall try, according to established forms and principles of law, all criminal causes committed to them, and after having received the instructions of the court, shall decide, in their discretion, by a general verdict, both the fact and the law involved in the issue, or may at their election find a special verdict. The court shall superintend the course of the trials, decide upon the admission and rejection of evidence, and upon all questions of law raised during the trials, and upon all collateral and incidental proceedings, and shall also charge the jury. SECT. 16. When a person indicted for a felony is on trial acquitted by the verdict of part of the offence charged, and convicted of the residue, such verdict may be received and recorded by the court, and thereupon the person indicted shall be adjudged guilty of the offence, if any, which appears to the court to be substantially charged by the residue of the indictment, and shall be sentenced and punished accordingly. SECT. 17. (R.) [When a person indicted for an offence is on trial acquitted by the jury, by reason of insanity, the jury, in giving their verdict of not guilty, shall state that it was given for such cause, and thereupon if his discharge or going at large is deemed manifestly dangerous to 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.] SECT. 18. No prisoner or person under recognizance, who is acquitted by verdict, or discharged because no indictment has been found against him, or for want of prosecution, shall be liable for any costs or fees of office, or for any charge for subsistence while he was in custody. 2 Allen, 163. 97 Mass. 59. 102 Mass. 162. 105 Mass. 59. SECT. 19. No indictment, and no complaint before a justice of the peace or police court, shall be quashed or deemed invalid, nor shall the judgment or proceedings thereon be arrested or affected, by reason of the omission or misstatement of the title, occupation, estate, or degree, of the defendant, or of the name of the city, town, county, or place, of his residence; nor by reason of the omission of the words "force and arms," or the words "against the peace," nor by reason of omitting to charge any offence to have been committed contrary to the form of the statute or statutes: provided, that such omission or misstatement does not tend to the prejudice of the defendant. SECT. 20. In all prosecutions before a police court or justice of the peace, under the by-laws of a city or town, the city solicitor, or other of selectmen, &c. person appointed by the board of aldermen or selectmen of such city or 1853, 179, § 2. town, may enter a nolle prosequi, or do any other matter or thing which may be done by a district-attorney in criminal prosecutions. viction before &c. R. S. 87, § 36. APPEALS. 1874, 33, 1876 0.855.5 SECTION 1. Every person convicted of an offence before a justice of Appeal from conthe peace or police court, may appeal from the sentence to the superior justices of peace, court then next to be held in the same county. The appellant shall be Rs. 85, § 28. committed to abide the sentence of said court until he recognizes to the R. S. 86. commonwealth in such reasonable sum and with such sureties as the R. S. 138, § 1. 'justice or court requires, with condition to appear at the court appealed to, and at any subsequent term to which the case is continued, if not previously surrendered and discharged, and so from term to term, until the final decree, sentence, or order of the court thereon, and to abide such final sentence, order, or decree, and not depart without leave, and in the mean time to keep the peace and be of good behavior. 1845, 166, § 2. 1849, 31. 6 Gray, 342. 105 Mass. 184. recognized, &c. SECT. 2. On such appeal the justice or court shall have the same Witnesses to be authority to bind by recognizances witnesses in the case, as they have 1856, 130 by chapter one hundred and seventy when a prisoner is admitted to bail or committed. &c. SECT. 3. The justice or court shall on such appeal make a copy of Justice's duty, the conviction and other proceedings in the case, and transmit the same, Fees, how paid. together with the recognizance, if any is taken, to the clerk of the court Rs. 13, § 2. appealed to. The fees of the justice therefor shall be paid from the county treasury in like manner as other costs in criminal prosecutions. 12 Gray, 28. 14 Gray, 37, 399. 97 Mass. 541. 105 Mass. 234. See 1862, 217, § 3. SECT. 4. The appellant shall not be required to advance any fees upon claiming his appeal, nor in prosecuting the same, but if convicted in the court appealed to, or if sentenced for failing to prosecute his peal, he may be required, as part of his sentence, to pay the whole or any part of the costs of prosecution. ap 2 Met. 18. 8 Gray, 482. 11 Gray, 72, 313, 117m. 150 Appellant not re quired to advance fees, &c. R. S. 138, § 3. prosecuted, ap 1094.361 SECT. 5. If the appellant fails to enter and prosecute his appeal, he If appeal not shall be defaulted on his recognizance, if any was taken, and the su- pellant to be perior court may award sentence against him for the offence whereof he sentenced. R. S. 138, § 4. was convicted, in like manner as if he had been convicted in that court; 1859, 196 and if he is not then in custody, process may be issued to bring him 10 Gray, 463. into court to receive sentence. 108m.5. SECT. 6. When upon suit brought on a recognizance to prosecute When on forfeitan appeal, the penalty is adjudged to be forfeited, or when, by leave of penalty accrues court, such penalty has been paid to the county treasurer or the clerk to a person, it of the court without a suit, or before judgment is given as provided in by court. chapter one hundred and seventy, if by law any forfeiture accrues to a person by reason of the offence of which the appellant was convicted, the court may award to him such sum as he may be entitled to out of the forfeiture. NEW TRIALS. ed recognizance may be awarded R. S. 138, § 9. granted, &c. SECT. 7. The supreme judicial court and superior court may at the New trials, how term in which the trial of any indictment is had, or within one year R. s. 82, § 30. thereafter, on the petition or motion in writing of the defendant, grant R. 8. 86, § 11, R. S. 138, § 11. a new trial for any cause for which by law a new trial may be granted; 1855, 152 or when it appears to the court that justice has not been done; and on 1.428. such terms or conditions as the court shall direct. REPORTS. 1859, 196. 111m-439 by judge. 12 Cush. 270. SECT. 8. If, upon the trial of a person convicted in the superior Reports of cases court, any question of law arises which, in the opinion of the presiding R. 138, § 12. judge, is so important or so doubtful as to require the decision of the 1859, 196. supreme judicial court, he shall, if the defendant desires it or consents 105 Mass. 468. thereto, report the case, so far as may be necessary to present the question of law arising therein; and thereupon all further proceedings in that court shall be stayed. Person to recog- R. S. 138, § 13. 11 Allen, 488. if he does not, Party may have R. S. 138, § 14. SECT. 9. Any person for whose benefit a report is made as is provided in the preceding section, or who files exceptions, may recognize to the commonwealth in such sum as the court shall order, with sufficient sureties, for his personal appearance at the supreme judicial court next to be held for the same county, and to enter and prosecute his exceptions with effect, and abide the sentence thereon, and in the mean time to keep the peace and be of good behavior. SECT. 10. If such person does not so recognize, he shall be committed to prison to await the decision of the supreme judicial court; and in that case, the clerk of the court in which the conviction was had shall file a certified copy of the record and proceedings in the case, in the supreme judicial court. The court shall have cognizance thereof and consider and decide the cause in the same manner as it decides questions of law reserved by one of the justices of that court, shall render such judgment, and award such sentence, or make such order thereon, as law and justice require; and a new trial may be ordered at the bar of the supreme judicial court, or the cause may be remanded to the superior court for a new trial there, as the justices of the supreme judicial court shall direct. But the proceedings herein prescribed shall not deprive any party of his writ of error for any error or defect appearing of record. Committal for non payment of frères costs 1854, 328, § 2. Person convicted SECTION 18. Solitary imprisonment to precede hard labor, unless, &c. 19. Offices forfeited by commitment to state prison. 20. Sheriff to execute sentences. 21. Removal of convict to state prison. 22. Officer to return precept to magistrate and leave copy with jailer, &c. 23. When convict imprisoned is again sentenced, warrant to be served by keeper where held. 24. Proceedings on conviction of a capital of fence; 25. when convict has become insane, or when 26, 27. Sentence of death, how executed. 30. Warrants of distress may be issued. SECTION 1. In cases of legal conviction, where no punishment is provided by statute, the court shall award such sentence as is conformable to the common usage and practice in this state, according to the nature of the offence, and not repugnant to the constitution. SECT. 2. Whoever is sentenced to imprisonment for any offence mentioned in section thirty-eight of chapter one hundred and twenty, may in addition to the imprisonment be sentenced to pay the costs of prose cution. SECT. 3. Whoever is convicted of an offence under the provisions of chapter eighty-six shall be sentenced to pay the costs of prosecution. SECT. 4. Whoever is convicted of an offence punishable wholly or Courts may sen- in part by imprisonment in the jail, may be sentenced to suffer such to pay costs. 2 Met. 419. house of correc 1845, 118. imprisonment in the house of correction instead of the jail, or to suffer tence to jail or solitary imprisonment and be confined at hard labor either in the jail or tion. house of correction. 4 Met. 361. See 1870, 370, § 4. R. S. 143, § 17. SECT. 5. Whoever is convicted of a crime punishable by fine and Same subject. liable to imprisonment in the jail for the non-payment of fine and costs of prosecution, may be sentenced to suffer such imprisonment in the house of correction instead of the jail, and confined at hard labor either in the jail or house of correction. sentences. 2 Met. 411, 412 SECT. 6. When a person is convicted of an offence punishable at the Conditional discretion of the court, either by fine or imprisonment in the jail or R. S. 139, § 2. house of correction, or by fine or imprisonment in the state prison, the 23 Pick. 280. court or justice may award against such offender a conditional sentence, 5 Met. 560. and order him to pay a fine with or without the costs of prosecution, within a limited time to be expressed in the sentence, and in default thereof to suffer such imprisonment as is provided by law. SECT. 7. The person against whom any such conditional sentence is awarded shall be forthwith committed to the custody of an officer in court or to the jail, to be detained until the sentence is complied with; and if he does not pay the fine and costs imposed within the time limited, the sheriff shall cause the other part of the sentence to be executed forthwith. Same subject. R. S. 139, § 3. prisonment, except, &c. SECT. 8. When it is provided that an offender shall be punished by Court may imimprisonment in the jail and a fine, or by imprisonment in the house prior imof correction and a fine, such offender, unless convicted under chapter 14. eighty-six, may at the discretion of the court be sentenced to be pun- 1855, 215, § 39. ished by such imprisonment without the fine, or by such fine without See 1866, 280, § 1. the imprisonment. certify, if con vict is unable to pay fine, &c. SECT. 9. (R.) [When a person is ordered to be imprisoned for non- Magistrate to payment of a fine, or fine and costs, not exceeding twenty dollars, the court or magistrate ordering such commitment shall inquire as to the ability of the defendant to pay the same, and if it appears that he is able, it shall be so certified upon the mittimus.] un SECT. 10. Every court before which a person is convicted upon an indictment for any offence not punishable with death, or by imprisonment in the state prison, may, in addition to the punishment prescribed by law, require such person to recognize with sufficient sureties in a reasonable sum to keep the peace, or to be of good behavior, or both, for any term not exceeding two years, and to stand committed until he so recognizes. See Ch. 180, § 7. sureties for peace may be tain cases. Allen, 61. required, in cer R. S. 139, § 5. 2 forfeiture of SECT. 11. Such recognizance shall be filed of record in the superior Proceedings on court, and in case of a breach of the condition, the same proceedings recognizance. shall be had as are prescribed in chapter one hundred and sixty-nine in R. S. 139, § 6. relation to recognizances to keep the peace and be of good behavior. SECT. 12. When a female with a nursing infant is convicted of an Sentence of feoffence punishable by imprisonment in the house of correction, the court with infants; or justice before whom the conviction takes place may sentence her to 1854, 416, §§ 1, 4. some workhouse or house of industry in the county; and for her support and custody there shall be paid from the county treasury two dollars a week to the town in which the sentence is executed. male convicts 1856, 40. of boys under sixteen; 143, § 18. SECT. 13. If a boy under the age of sixteen years is convicted of an offence punishable by imprisonment in the state prison, he not having R been before sentenced to imprisonment in the state prison in this state, 2 Met. 419. or in any state prison or penitentiary within the United States, the See 1870, 359, § 7. court, if sentence of solitary imprisonment and confinement at hard labor for a term not exceeding three years is awarded against him, shall order such sentence to be executed against him in the jail, and not in the state prison. of females. R. S. 143, § 18. SECT. 14. When sentence of confinement at hard labor for any term of time is awarded against a female convict of whatever age, the court 12 Cush. 237. |