Issues of fact, trial of. Proviso. Further proviso. When grand juror not those prisoners who have received a parole by due process of law and are at liberty under the terms of such parole. SEC. 8. Issues of fact joined upon any indictment shall be tried by a jury drawn, returned, examined on voir dire and empaneled in the manner provided by law for the trial of issues of fact in civil cases: Provided, That nothing in this act shall change any of the provisions of statutes now in force providing special methods of drawing, returning, empaneling and examining jurors in courts where such provision is made by any general, special or local act: Provided further, That the accused may waive any trial by jury in the manner set forth by the provisions of this act. SEC. 9. No member of the grand jury which has found an put on trial indictment shall be put upon the jury for the trial of such indictment, if challenged for that cause by the defendant. jury. Insufficient ground of challenge. Proviso. Further proviso. Who not allowed to serve. Peremptory challenges. Capital offenses. SEC. 10. The previous formation or expression of opinion or impression, not positive in its character, in reference to the circumstances upon which any criminal prosecution is based, or in reference to the guilt or innocence of the prisoner, or a present opinion or impression in reference thereto, such opinion or impression not being positive in its character, or not being based on personal knowledge of the facts in the case, shall not be a sufficient ground of challenge for principal cause, to any person who is otherwise legally qualified to serve as a juror upon the trial of such action: Provided, That the person proposed as a juror, who may have formed or expressed, or has such opinion or impression as aforesaid, shall declare on oath, that he verily believes that he can render an impartial verdict according to the evidence submitted to the jury on such trial: Provided further, That the court shall be satisfied that the person so proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror. SEC. 11. No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death, shall be compelled or allowed to serve as a juror on the trial of any indictment for such an offense. SEC. 12. Any person who is put on trial for an offense which is not punishable by death or life imprisonment shall be allowed to challenge peremptorily five of the persons drawn to serve as jurors and no more; and the prosecuting officers on behalf of the people shall be allowed to challenge peremptorily in such cases five of such jurors and no more. In cases involving two or more defendants who are being jointly tried for such an offense, each of said defendants shall be allowed to challenge peremptorily five persons returned as jurors and no more; and the prosecuting officers on behalf of the people shall be allowed to challenge peremptorily as many times five of the persons returned as jurors as there may be defendants being so jointly tried. SEC. 13. Any person who is put on trial for an offense punishable by death or imprisonment for life, shall be allowed to challenge peremptorily twenty of the persons drawn to serve as jurors, and no more; and the prosecuting officers on behalf of the people shall be allowed to challenge peremptorily fifteen of such persons, and no more. In cases involving two or more defendants, who are being jointly tried for such an offense, each of said defendants shall be allowed to challenge peremptorily twenty persons returned as jurors, and no more; and the prosecuting officers on behalf of the people shall be allowed to challenge peremptorily as many times fifteen of the persons returned as jurors as there may be defendants being so jointly tried. SEC. 14. The following oath shall be administered to the Oath of jurors. jurors for the trial of all criminal cases: "You shall well and truly try, and true deliverance make, between the people of this state and the prisoner at bar, whom you shall have in charge, according to the evidence and the laws of this state; so help you God." tion. SEC. 15. Any juror shall be allowed to make affirmation, Substitusubstituting the words "This you do under the pains and penalties of perjury" instead of the words "so help you God." SEC. 16. The jurors sworn to try a criminal action in any Separation of jurors. court of record in this state, may, at any time before the cause is submitted to the jury, in the discretion of the court, be permitted to separate or to be kept in charge of proper officers. When an order shall have been entered by the court in which such action is being tried, directing said jurors to be kept in charge of such officers, the following oath shall be adminis tered by the clerk of the court to said officers: "You do solemnly swear that you will, to the utmost of your ability, keep the persons sworn as jurors on this trial from separating from each other; that you will not suffer any communication to be made to them, or any of them, orally or otherwise; that you will not communicate with them, or any of them, orally or otherwise, except by the order of this court, or to ask them if they have agreed on their verdict, until they shall be discharged; and that you will not, before they render their verdict, communicate to any person the state of their deliberations or the verdict they have agreed upon, so help you God." And thereafter it shall be the duty of the officer so sworn to keep the jury from separating, or from receiving any communication of any character, until they shall have rendered their verdict, except under a special instruction in writing from the trial judge. After the jurors retire to consider their verdict, the court may permit the jurors to separate temporarily, whenever in his judgment such a separation is deemed proper: Provided, That in cases where separation of the mem- Proviso. bers of a jury is now forbidden by law, the authority hereby granted shall not extend to permitting separation of the members of the jury of the same sex. attendance SEC. 17. The trial judge may order, in case of illness of Medical any jurors mentioned in the preceding section, that such of juror. juror may receive medical attendance, and may be removed When jury of 14 impaneled. Perjury, who Notice of intention to Filing of. to his home or some other place agreeable to the judge during the continuance of his illness; and that any of the jurors may receive such newspapers and letters as make no mention of the trial then in progress, or of any facts connected therewith, which shall first be inspected by the said judge. SEC. 18. Any judge of a court of record in this state about to try a criminal case which is likely to be protracted, may order a jury empaneled of not to exceed fourteen members, who shall have the same qualifications and shall be empaneled in the same manner as is, or may be, provided by law for empaneling juries in such courts. All of said jurors shall sit and hear said cause. Should any condition arise during the trial of said cause which in the opinion of the trial court justifies the excusal of any of the jurors so empaneled from further service, he may do so and said trial shall proceed, unless the number of said jurors be reduced to less than twelve, and in the event that there shall be more than twelve jurors left on said jury after the charge of the court, the clerk of the court in the presence of said court shall place the names of all of the said jurors on slips, folded so as to conceal the names thereon, in a suitable box provided for that purpose, and shall draw therefrom the names of a sufficient number to reduce the jury to twelve members who shall then proceed to determine the issue presented in the manner provided by law. SEC. 19. Any officer having taken an oath required by any provision of this chapter who shall knowingly and wilfully violate the same or permit the same to be violated, shall, on conviction thereof, be adjudged guilty of the crime of perjury and subject to all the pains and penalties thereof. SEC. 20. Whenever a defendant in a criminal case not claim alibi. cognizable by a justice of the peace shall propose to offer in his defense testimony to establish an alibi on behalf of the defendant, or of the insanity of such defendant either at the time of the alleged offense or at the time of trial, such defendant shall not less than four days before the trial of such cause file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to claim such defense and in cases of a claimed alibi such notice shall include specific information as to the place at which the accused claims to have been at the time of the alleged offense. Failure to file. Rules of evidence governing. Exceptions. SEC. 21. In the event of the failure of a defendant to file the written notice prescribed in the preceding section, the court may in its discretion exclude evidence offered by such defendant for the purpose of establishing an alibi or the insanity of such defendant as set forth in the preceding section. SEC. 22. The rules of evidence in civil actions, in so far as the same are applicable, shall govern in all criminal and quasi criminal proceedings except as otherwise provided by law. SEC. 23. It shall not be necessary in the trial of any criminal cause to except to any ruling or action of the court, if an objection thereto was fully made but an exception shall be deemed to follow as a matter of course. questions SEC. 24. Within the discretion of the court no question When asked of a witness shall be deemed objectionable solely because not objecit is leading. tionable. proof of. SEC. 25. Whenever in the trial of any criminal case it Signatures, shall be necessary or proper to prove the signature of any person, it shall be competent to introduce in evidence for the purpose of comparison, any specimen or specimens of the handwriting or signature of such person, admitted or proved to the satisfaction of the court to be genuine, whether or not the paper on which such handwriting or signature appears is one in evidence or connected with the case or not. taken by SEC. 26. Testimony taken at an examination, preliminary Testimony hearing, or at a former trial of the case, or taken by deposi- deposition, tion at the instance of the defendant, may be used by the etc. prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify. may be SEC. 27. In any criminal case where the defendant's What acts motive, intent, the absence of, mistake or accident on his proved. part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant. jury. SEC. 28. The court may order a view by any jury em- View by paneled to try a criminal case, whenever such court shall deem such view necessary. SEC. 29. It shall be the duty of the judge to control all Duty of proceedings during the trial, and to limit the introduction of judge. evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. The court shall instruct the jury as to the law applicable to the case and in his charge make such comment on the evidence, the testimony and character of any witnesses, as in his opinion the interest of justice may require. The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused. to charge SEC. 30. It shall not be necessary in any criminal suit, Exceptions action or proceeding in any court of record, to except to the not charge given to the jury, or to the refusal to give any charge necessary. requested by either of the parties to such suit, action or proceeding, but any party aggrieved by any such charge or refusal to charge, may assign error upon such charge or refusal to When defendant discharged. Degree When conviction degree prohibited. charge in his assignments of error, the same as if exception SEC. 31. Whenever two or more persons shall be included SEC. 32. Upon an indictment for any offense, consisting of different degrees, as prescribed in this chapter, the jury may find the accused not guilty of the offense in the degree charged in the indictment and may find such accused person guilty of any degree of such offense, inferior to that charged in the indictment, or of an attempt to commit such offense. SEC. 33. When a defendant shall be acquitted or convicted for different upon any indictment for an offense, consisting of different degrees, he shall not thereafter be tried or convicted for a different degree of the same offense; nor shall he be tried or convicted for any attempt to commit the offense charged in the indictment or to commit any degree of such offense. When not Plea of guilty. SEC. 34. No prisoner or person under recognizance who shall be acquitted by verdict or discharged because no indictment has been found against him, or for want of prosecu tion, shall be liable for any costs or fees of office or for any charge for subsistence while he was in custody. SEC. 35. Whenever any person shall plead guilty to an information filed against him in any court, it shall be the duty of the judge of such court, before pronouncing judgment or sentence upon such plea, to become satisfied after such investigation as he may deem necessary for that purpose respecting the nature of the case, and the circumstances of such plea, that said plea was made freely, with full knowledge of the nature of the accusation, and without undue influence. And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered and order a trial of the issue thus formed. 1 Who may pass sentence. Proviso. CHAPTER IX. Judgment and Sentence. SECTION 1. The justices of the supreme court, or any of them, or any of the several circuit judges in the respective circuits, or any judge of a court of record having jurisdiction of criminal cases, in this state, are hereby authorized and empowered to pronounce judgment against and pass sentence upon all persons heretofore convicted, or that may hereafter. be convicted in any court held by said justices, or judges, or any of them, for any offense heretofore committed or that may hereafter be committed against the laws of this state: Provided, That such sentence shall in no case or respect be greater |