Indiana.

Burns' annotated Indiana statutes : showing the general statutes in force September 1, 1901 : embracing the revision of 1881 as amended, and all permanent, general and public acts of the General Assembly passed since the adoption of that revision : containing also the United States and Indiana const online

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Online LibraryIndianaBurns' annotated Indiana statutes : showing the general statutes in force September 1, 1901 : embracing the revision of 1881 as amended, and all permanent, general and public acts of the General Assembly passed since the adoption of that revision : containing also the United States and Indiana const → online text (page 24 of 135)
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motion, or the delay be caused by his act, or there be not sufficient time
to try him at such third term ; and, in the latter case, if he be not brought
to trial at such third term he shall be discharged, except as provided
in the next section.

1862. Blay refuse to discharge. — 221. If when application is made
for the discharge of a defendant under either of the last two sections,
the court be satisfied that there is evidence for the state, which can
not then be had, that reasonable effort had been made to procure the
same and that there is just ground to believe that such evidence can
be had at the next term, the cause may be continued, and the prisoner
remanded or admitted to bail; and if he be not brought to trial by the
state at the next term he shall then be discharpred.

See note to section 1853, Burns* R. S. 1901.



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§ 18G3 CRIMIXAL PROCEDURE. 170

ARTICLE 13.— RIGHTS OF ACCUSED— ACCESSORIES.

SEC. SEC.

1863. When accused must be present. 1866. Accessory in another state.

1864. When accused may be absent. 1867. Accessory after the fact.

1865. Accessory before the fact.

[Acts 1905, p. 584. , In force April 15, 1905.]

1863. When accused must be present. — 222. No person prosecuted
for any offense punishable by death, or by confinement in the state
prison or county jail, shall be tried unless personally present during
the trial.

See notes to section 1855, Burns' R. S. 1901.

1864. When accused may be absent. — 223. No person prosecuted for
an offense punishable by fine only shall be tried without being per-
sonally present, unless some responsible person, approved by the court,
undertake to be bail for stay of execution and payment of the fine
and costs that may be assessed against the defendant. Such under-
taking must be in writing, and will be as effective as if entered after
judgment.

See notes to section 1856, Bums' R. S. 1901.

1865. Accessory before the fact. — 224. Every person who shall aid
or abet in the commission of a felony, or who shall counsel, encourage,
hire, command, or otherwise procure a felony to be committed, may be
charged by indictment, or affidavit, tried and convicted in the same man-
ner as if he were a principal, either before or after the principal of-
fender is charged, indicted or convicted; and upon such conviction he
shall suffer the same punishment and penalties as are prescribed by law
for the punishment of the principal.

See notes to section 1857, Bums' R. S. 1901.

If a person furnishes to a pregnant woman an instrument and directs and advises
her how to use it upon her person to produce an abortion, and she so uses the instru-
ment and an abortion is produced, the person furnishing such .instrument may be
charged and convicted as a principal, although he was not present when such ijistru-
ment was used. Seifert v. State, 160 Ind. 464.

1866. Accessory in another state. — 225. Every person who shall,
while in this state, aid in and abet the perpetration, or attempt to per-
petrate a felony in. another state which by the laws of this state is a
felony, shall be deemed guilty of a felony j and, on conviction, shall be
punished in the same manner and to the same extent as accessories
before the fact to the commission of such a felony are prosecuted and
punished by the criminal laws of this state; and it shall not be essen-
tial to the conviction of such person of such felony that the principal
be prosecuted for the crime charged.

This section is the same as section 1645, Bums' R. S. 1901.



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IT I IMPANELING JURY. § 1867

If it is charged that a person in this state aided the commision of a crime in another
state which is a felony under the laws of this state, it must be alleged that the acts
done constituted an ofTense imder the laws of such other state. Cruthers v. State,
161 Ind. 139.

1867. Accessory after the fact. — ^226. Every person not standing in
the relation of husband or wife, parent or grandparent, child or grand-
child, brother or sister, by consanguinity or aflBnity, to any person
guilty of any felony, who shall, after the commission of such crime,
harbor, conceal or assist any such offender, with intent that he shall
escape from detection, arrest, capture or punishment, shall be deemed
an accessory after the fact, and may be charged, indicted, tried, con-
victed and punished, though the principal be neither charged, indicted,
tried nor convicted; and, on such conviction, he shall suffer the same
punishment and penalties as are prescribed by law for the punishment
of the principal. But in such charge the offense committed by the
principal offender shall be stated, and it shall therein be charged that
the accessory did so harbor, conceal, or assist such offender, with intent
that he should ecape detection, arrest, capture or punishment.

See notes to section 1868, Bums' R. S. 1901.



ARTICLE 14.— IMPANELING JURY.

SEC. SEC.

1868. How caUed, solicitation. 1873a. Jurors from other counties.

1869. Challenges by accused. 1873b. Jury commissioners — Summons by

1870. Challenges by state. sheriff.

1871. Causes for challenge. 1873c. Additional jurors, summons.

1872. Challenges summarily tried. 1873d. Attachment, contempt.

1873. Talesmen. 1873e. Fees of officers and jurors.

[Acts 1905, p. 584. In force April 15, 1904.]

1868. How called— Solicitation.— 227. The petit or trial jury used in
civil cases shall act also in criminal cases, but shall consist of twelve qual-
ified jurors; and where a jury trial is demanded, the sheriff shall call a
jury in the manner prescribed by law or as directed by the court. Any
person who solicits or attempts to influence the sheriff, or any of his
deputies or bailiffs, to put him or another person on the jury shall
be punished by imprisonment as for contempt. If any person be placed
on the jury by such request it shall be good cause for challenge or new
trial.

See sections 1859-1864; Bums' R. S. 1901, and notes.

1869. Challenges by accused. — 228. In prosecutions for capital of-
fenses, the defendant may challenge, peremptorily, twenty jurors; in
prosecutions for offenses punishable by imprisonment in the state prison,



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§ 1870 CRIMINAL PROCEDUKE. 172

ten jurors; in other prosecutions, three jurors. When several defend-
ants are tried together, they must join in their challenges.
See notes to section I860, Burns' R. S. 1901.

1870. Challenges by state. — 229. The prosecuting attorney shall
have the same number of peremptory challenges as the defendant has
in like cases.

1871. Causes for challenge.— 230. The following shall be good
causes for challenge to any person called as a juror in any criminal
trial :

First. That he was a member of the grand jury that found the
indictment.

Second. That he has formed or expressed an opinion as to the guilt
or innocence of the defendant. But if a person called as a juror state
that he has formed or expressed an opinion as to the guilt or innocence of
the defendant, the court or the parties shall thereupon proceed to examine
such juror on oath as to the ground of such opinon ; and if it appear to
have been founded upon reading newspaper statements, commnuiea-
tions, comments or reports, or upon rumors or hearsay, and not upon
conversation with witnesses of the transaction, or reading reports of
their testimony, or hearing them testify, and the juror state on oath
that he feels able, notwithstanding such opinion, to render an impar-
tial verdict upon the law and evidence, the court, if satisfied that ho
is impartial and will render such verdict, may, in its discretion, admit
him as competent to serve in such case.

Third. If the offense charged be punishable with death, that he
entertains such conscientious opinions as would preclude his affixing
the death penalty if the defendant should be found guilty.

Fourth. That he is related within the fifth degree to the person
alleged to be injured or attempted to be injured, by the offense charged,
or to the person on whose complaint the prosecution was instituted,
or to the defendant.

Fifth. That he has served on a petit jury which was sworn in the
same case against the same defendant, and which jury was discharged
after hearing the evidence, or rendered a verdict which was set aside.

Sixth. That he served as a juror in a civil case brought against
the defendant for the same act.

Seventh. That he has been subpoenaed in good faith as a witness
in the case.

Eighth. That he is an habitual drunkard.

Ninth. That he is an alien.

Tenth. That he has been called to sit on the jury at his own solicita-
tion or that of another.

Eleventh. That he is biased or prejudiced for or against the defend-
ant.



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173 IMPANELING JURY. § 1872

Twelfth. That he does not have the qualifications £or a juror pre-
scribed by law.

Thirteenth. That, from defective sight or hearing, ignorance of
the English language or other cause, he is unable to comprehend the
evidence and the instructions of the court.

Fourteenth. That he has a personal interest in the result of the
trial.

Fifteenth. If he is not a member of the regular panel, that he has
served on a jury within twelve months immediately preceding the trial.

See notes to section 1862, Burns' R. S. 1901.

Jurors may be challenged for causes that are not specified by statute. Gaff v. State,
155 Ind. 277.

Deputy sheriffs are incompetent to serve as jurors in criminal actions. GaflF v. State,
155 Ind. 277.

When the punishment may be death, the state may challenge jurors who entertain
conscientious scruples against inllicting the death penalty. Coppenhaver v. State, 160
Ind. 540.

1872. Challenges summarily tried. — 231. All challenges for cause
shall be made before the jury is sworn to try the cause, and shall be
summarily tried by the court on the oath of the party challenged or other
evidence.

See notes to section 1863, Bums' R. S. 1901.

1873. Talesmen. — ^232. Whenever it becomes necessary to summon a
juror from the bystanders, the court shall instruct the sheriff to call no
person as a juror who has either solicited or been recommended for the
position; and the court may, of its own motion or at the request of
either party, direct the sheriflf to summon the talesmen from persons
outside the court house.

See notes to section 1864, Bums' R. S. 1901.

[AcU 1906, p. 153. In force March 4, 1905.]

1873a. Jurors from other counties. — 1. That when a prosecution for
felony is pending in any court of this state having jurisdiction, and
before or during the impaneling of a jury therein, the judge of such
court shall be satisfied, after having made a fair investigation in good
faith for that purpose, that from any cause it will be improbable that
a jury, without bias or prejudice, can be obtained within the county
wherein the prosecution is pending, he shall enter an order of such
determination and shall include in such order a request upon the judge
of the circuit court of an adjoining county to be named in such order,
to forthwith procure the drawing of names for a jury to be summoned
to appear before the court to serve as jurors in such cause at a time to
be named in such order. And the clerk of the court wherein such
order is made shall forthwith transmit a transcript of such order to
the judge of the circuit court of the county therein named.

See section 13 of article 1 of the constitution on the right of trial by jury in the
county where an offense is committed.



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§ 1873b CRIMINAL PROCEDURE. 174

1873b. Jury commissioners — Summons by sheriff. — 2. Immediately
upon the receipt of such transcript, the judge of the circuit court to
which such transcript is addressed shall call together the jury commis-
sioners of the county therein named, and such jury commissioners shall
immediately proceed to draw from the jury box of such county twenty-
five names. Such drawing to be in all respects as provided for the
drawing of jurors in other cases, and the clerk of such circuit court shall
immediately certify the list of names so drawn to the clerk of the
circuit court of the county wherein said cause is pending and shall
also issue a summons directed to the sherifl! of his county for such
persons to appear at court where said cause is pending at the time
named in the transcript aforesaid, and such sheriff, upon the receipt
of such summons shall immediately summon said persons and shall
forthwith make return of service of such w^rit to the court, where
said cause is pending.

1873c. Additional jurors — Summons. — 3. If upon the impaneling of
the jury, it shall be found that a fair and impartial jury can not be
secured from the names selected as provided in the foregoing section,
then the sheriff of the county where said cause is pending shall be
ordered by the. judge of such court to proceed to an adjoining county
and summon from the body of its citizens a sufficient number of quali-
fied resident freeholders of such county to complete such panel.

1873d. Attachment — Contempt. — 4. If any person so summoned as
herein provided shall fail to obey such summons he shall be subject to
attachment and proceedings for contempt by the court where said cause
is pending, the same as in other cases.

1873e. Pees of oflScers and jurors. — 5. The sheriff, clerk, jurors or
other officer shall receive for their services the same fees, mileage and
per diem as are provided by law for like services in other cases, to
be paid by the county in which said cause originated upon the order
of the court trying the same.

ARTICLE 15.— EVIDENCE.

BEC. SEC.

1874. Witness, how summoned. 1886. Receiving stolen goods, proof.

1876. Rules of evidence — Competency of 1887. Written instruments, chattels,

witnesses. 1888. Treason, proof.

1876. Who are competent witnesses. 1889. Highways, obstruction, proof.

1877. Gaming. 1890. Trespass to lands.

1878. Misdemeanor-^Use of evidence. 1891. Public contracts.

1879. Experts as to writing. 1892. Transporting game.

1880. Confession. 1893. Gaming house.

1881. General moral character. 1894. Evidence in civil suit for fraud.

1882. Discharge of defendant to testify. 1896. Embezzlement by officer.

1883. Depositions. 1896. Testimony of convict.

1884. Rape, proof. 1897. Keeper to bring witness.

1885. Seduction, proof. 1898. Convict witness, how kept.



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175 EVIDENCE. § 1874

[Acts 1905, p. 584. In force April 15, 1905.]

1874. Witness — ^How summoned. — 233. Witnesses on behalf of the
state or of the defendant, in a criminal prosecution, may be compelled
to attend and testify in open court, if they have been subpoenaed, with-
out their fees being first paid or tendered. The court may recognize
witnesses, with or without surety, to attend and testify at the same or
the next term.

See sections 1865-1889, Burns' R. S. 1901, and notes.

1876. Sides of evidence — Competency of witnesses.— 234. The rules
of evidence prescribed in civil cases and concerning the competency of
witnesses shall govern in criminal cases, except as otherwise provided in
this act.

See notes to section 1865, Burns* R. S. 1901.

A request made by a patient to a physician to commit a crime can not be regarded
ai* a privileged communication. Seifert v. State, 160 Ind. 464.

1876. Who are competent witnesses. — 235. The following persons
are competent witnesses :

First. All persons who are competent to testify in civil actions.

Second. The party injured by the offense committed.

Third. Accomplices, when they consent to testify.

Fourth. The defendant, to testify in his own behalf. But if the
defendant do not testify, his failure to do so shall not be commented
upon or referred to in the argument of the cause, nor commented upon,
referred to, or in any manner considered by the jury trying the same;
and it shall be the duty of the court, in such case, in its charge, to
instruct the jury as to their duty under the provisions of this section.

See notes to section 1867, Bums* R. S. 1901.

1877. Oaming. — 236. Any person called as a witness to testify
against another for gaming, or for keeping any gaming apparatus or
any devise [device] or trick to procure money, or for keeping a place
to be used for gaming, or for engaging in any lottery scheme or gift
enterprise or raflSe, is a competent witness to prove the offense, although
he may have been concerned as a party, and he shall be compelled to
testify as other witnesses; but such evidence shall not be used against
him in any prosecution for such or any other offense, and he shall not
be liable to trial by indictment or affidavit, or to punishment for such
offense.

See notes to section 1868, Bums' R. S. 1901.

1878. Misdemeanor — ^Use of evidence. — 237. Whenever any person
is required to testify touching the commission of any misdemeanor,
his evidence therein shall not be used in any prosecution against him,
except in case of perjury committed by him therein; and he shall not



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§ 1879 CllIMINAL PROCEDURE. 176

be liable to trial by indictment or aflBdavit, or to punishment for such
misdemeanor.

See notes to section 1869, Burns' R, S. 1901.

1879. Experts as to writing. — 238. Persons of skill may be called
to testify touching the genuineness of a note, bill, draft or certificate
of deposit, or other instrument of writing; but three witnesses at least
shall be required to prove the fact of genuineness, except in the case
of a larceny thereof. The single evidence of the cashier of the bank
purporting to have issued such instrument may be received as, and
deemed, prima facie evidence of such genuineness.

See notes to section 1870, Burns* R. S. 1901.

1880. Confession. — 239. The confession of a defendant made under
inducement, with all the circumstances, may be given in evidence against
him, except when made under the influence of fear, produced by threats
or by intimidation or undue influences; but a confession made under
inducement is not sufficient to warrant a conviction without corrobo-
rating evidence.

See notes to section 1871, Burns' R. S. 1901.

Voluntary confessions made by an accused under arrest are admissible in evidence.
Ginn v. State, 161 Ind. 292.

1881. Oeneral moral character. — 240. In all questions affecting the
credibility of a witness, his general moral character may be given in
evidence.

See notes to section 1872, Burns' R. S. 1901.

1882. Discharge of defendant to testify. — 241. When two or more
persons are included in one prosecution, the court may, at any time
before a defendant has gone into his defense, direct him to be dis-
charged, that he may be a witness for the state. A defendant may
also, when there is not sufiieient evidence to put him on his defense,
at any time before the evidence is closed, be discharged by the court
for the purpose of giving testimony for a co-defendant. The order of
discharge shall be a bar to another prosecution for the same offense.

See notes to section 1873, Burns* R. S. 1901.

1883. Depositions. — ^242. A defendant, by leave of court or by writ-
ten notice to the prosecuting attorney, may take the depositions of
witnesses residing within or without the state, to be read on the trial;
and the request of the defendant for such leave of court, or the giving
by him of such notice to the prosecuting attorney, shall be deemed a
waiver of his constitutional right to object to the taking of deposi-
tions of witnesses by the state, relative to the same matter, to be read
on the trial: Provided, That leave to take such depositions be given



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177 EVIDENCE. § 1884

the state, or notice of the taking of such depositions be given to the
defendant by the prosecuting attorney.
See notes to section 1874, Burns' R. S. 1901.

1884. Rape — Proof. — ^243. In prosecutions for rape, proof of pene-
tration shall be sufficient evidence of the commission of the offense.

See notfts to section 1875, Bums' K. S. 1901.

Penetration on a charge of rape may be proven by inference and need not be proven by
unambiguous evidence. Bradbum v. State, 162 Ind. 689.

1886. Seduction — ^Proof. — 244. In prosecutions for seduction, and
for enticing and taking away a female for the purpose of prostitution,
the evidence of the female must be supported by at least one other
witness, or by strong corroborating circumstances as to every material
point necessary to the commission of the offense.

See notes to section 1876, Bums' R. S. 1901.

In prosecutions for seduction the evidence of the female must be corroborated to the
extent required as to the principal witness in cases of perjury. Hinkle v. State, 157
Ind. 237.

1886. Receiving stolen goods — ^Proof. — 245. In any prosecution for
the offense of buying, receiving, concealing, or aiding in the conceal-
ing of any stolen property, it shall not be necessary, on the trial thereof,
to prove that the person who stole such property has been convicted.

See notes to section 1877, Bums' R. S. 1901.

1887. Written instniments — Ghattels. — ^246. Bonds, promissory
notes, bank notes, bills of exchange, or other bills, orders, drafts, checks
or certificates, for or concerning money or property due or to become
due or to be delivered, any deed or writing containing a conveyance
of land, or any valuable contract in force, or any receipt, release
or defeasance, or any other written instrument, whatever, shall be
considered as personal goods, of which larceny may be committed.

See notes to section 1878, Bums' R. S. 1901.

1888. Treason — ^Proof. — 247. No person shall be convicted of trea-
son except on the testimony of two witnesses to the same overt act,
or upon his confession in open court.

1889. Highways — Obstmction — Proof. — 248. In any prosecution for
obstmcting a highway, or for neglecting to keep a highway in good
repair, it shall be sufficient to prove that it is used and worked as
such.

See notes to section 1880, Bums' R. S. 1901.

1890. Trespass to lands. — 249. In any prosecution for trespass or
injury to lands of this state or of the United States, or to the lands



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§ 1891 CRIMINAL PROCEDURE. ITS

of non-residents of this state, or for a violation of any law of this
state with respect to them, it shall be prima facie evidence of the owner-
ship of such lands to prove that such lands are reputed, in the neigh-
borhood where such lands lie, to belong to the state or to the United
States or to be non-resident's lands.

1891. Public contracts.-^250. In all prosecutions against officers for
having an interest in public contracts, any contractor with any state
officer, or with any appointee or agent of such officer, or with any
county, township, town or city officer, or appointee of the same, shall
be compelled to testify against the officer of such state, county, town-
ship, town or city; and such officers or their appointees or agents
shall be compelled to testify against any contractors therewith; but
such evidence shall not be used against the party testifying, in any
prosecution against himself, and the person thus testifying shall be
exempt from prosecution or punishment for such offense.

See notes to section 1882, Burns' R. S. 1901.

1892. Transporting game. — 251. The possession by any railroad
company, express company, common carrier or person, of any game or
birds marked or labeled for any point beyond the limits of this state,
or which shall be shown by any way-bill, bill of lading or shipping
book, to be intended for delivery at any place beyond the limits of
this state, shall be prima facie evidence of the violation of the pro-
visions of law with respect to the transportation of game or birds.

1893. Oaming house. — ^252. It shall be sufficient evidence that any
building or other place was rented for the purpose of gaming, if such
gaming was actually carried on, and the owner or lessor thereof knew
or had good reason to believe that the lessee suflfered any gaming there-
in, and such owner or lessor took no sufficient means to prevent or
restrain the same.

See notes to section 1884, Burns* R. S. 1901.

1894. Evidence in civil suit for fraud. — 253. The evidence of any
person in any civil action disclosing fraud as against creditors shall
not be used against such person in any criminal prosecution for com-
mitting such fraud.

1895. Embezzlement by officer. — 254. Any failure or refusal to pay
over, or to produce public money, or any part thereof, by any officer



Online LibraryIndianaBurns' annotated Indiana statutes : showing the general statutes in force September 1, 1901 : embracing the revision of 1881 as amended, and all permanent, general and public acts of the General Assembly passed since the adoption of that revision : containing also the United States and Indiana const → online text (page 24 of 135)