and that the defendant cannot be prejudiced thereby in his Verdict and judgment of same force as if no amendment SECT. 160. Every verdict and judgment which shall be given after the making of any amendment under the provisions of this code, shall be of the same force and effect in all had been made. respects as if the same indictment had originally been in the same form in which it was after such amendment was made. If formal rec ord necessary, be inserted as SECT. 161. If it shall be necessary at any time, for any purpose whatever, to draw up a formal record in any case indictment to when any amendment shall have been made under the provis- amended. ions of this code, such record shall be drawn up in the form in which the indictment was after such amendment was made, without taking any notice of the fact of such amendment having been made. tions to form, SECT. 162. All exceptions which go merely to the form of Force of excepan indictment, shall be made before trial, and no motion in &c. arrest of judgment, or writ of error, shall be sustained for any matter not affecting the real merits of the offence charged in such indictment. No indictment shall be quashed for want of the words, "with force or arms," or of the occupation or place of residence of the accused, nor by reason of the disqualification of any grand juror or grand jurors. SECT. 163. Nothing in this chapter contained shall be so Parties injured may maintain action for damcriminal offence. ages as well as Proviso. Judges to make report of deficiencies or construed as to prevent the party or parties injured from having and maintaining a civil action for all damages and losses that he, she, or they may have sustained, in consequence of the commission of any criminal offence herein punished; and no court shall allow or entertain the plea that the private injury is merged in the crime, or in any manner affected thereby: Provided, however, The record of conviction shall not be used as evidence in any civil action brought on any forged writing, or to recover the damages and losses sustained by the commission of any such criminal offence. SECT. 164. It shall be and is hereby declared to be the defects in code. duty of the judges of the supreme and district courts to make a special report biennially, to the legislature, of all such defects, omissions, or imperfections in this code, as experience may suggest. Death penalty, how inflicted. Court may order body deliv SECT. 165. The manner of inflicting the punishment of death, shall be by hanging the person convicted by the neck until death, at such time as the court shall direct, not less than fifteen nor more than sixty days from the time sentence is pronounced, unless, for good cause, the court or governor may prolong the time. SECT. 166. The court may order, on the application of ered to surgeons. any respectable surgeon or surgeons, that the body of the convict shall, after death, be delivered to such surgeon or surgeons for dissection. This chapter extends to females. Jury to name term of confine ment. Judge to apportion it. SECT. 167. This chapter shall extend to females committing any of the offenees made punishable by this chapter, although they may not be expressly named. In all cases where the punishment shall be by confinement in the penitentiary, the jury shall say in their verdict for what term the offender shall be confined; and the court, in pronouncing sentence, shall designate the portion of time such offender shall be confined to solitary imprisonment, and what portion to Persons under hard labor. Persons under the age of eighteen years shall confined in pen- not be punished by confinement in the penitentiary for any offence, except robbery, rape, manslaughter, burglary, or arson; in all other cases, where a penitentiary punishment is or shall be provided, such person, under the age of eighteen years, shall be punished by imprisonment in the county jail, for any term not exceeding eighteen months, at the discretion of the court. 18 years, when itentiary and when in jail. ished. SECT. 168. All offences herein defined shall be prosecuted Offences punand punished as by this chapter is prescribed, and not otherwise; and all other offences may be punished by fine and imprisonment, in the discretion of the court: Provided, The Proviso. fine in no case shall exceed one hundred dollars, and the imprisonment six months. When punishment is discre fix. SECT. 169. Whenever the punishment for any crime or misdemeanor is discretionary as to the extent or amount tionary, court to thereof, the court shall determine and affix the same, whether the punishment consist of corporeal punishment, imprisonment, or fine. county treasury, SECT. 170. All fines imposed by virtue of any of the laws Fines paid into of this territory for the punishment of crimes and misdemeanors, shall, when collected, be paid into the treasury of the county where the offence shall be tried, for the use of such county, unless otherwise specially directed: Provided, Proviso. however, That nothing in this section contained shall be so construed, as to found or constitute a cause of challenge or objection to any grand or petit juror. SECT. 171. The benefit of clergy, appeals of felony, and Benefit of trials by battle, shall be and are hereby forever abolished. hereafter be clergy, appeals of felony, and trials by battle abol Court may order confinement until fine Persons guilty of certain crimes SECT. 172. The court shall have power, in all cases of ished. conviction under this chapter, when any fine is inflicted to order, as part of the judgment of the court, that the offender is paid. shall be committed to jail, there to remain until the fine and costs are fully paid or otherwise legally discharged. SECT. 173. Each and every person who may convicted of the crime of rape, kidnapping, wilful and corrupt deemed inperjury or subornation of perjury, arson, burglary, robbery, capable of holdsodomy, or the crime against nature, incest, larceny, forgery, counterfeiting, or bigamy, shall be deemed infamous, and shall forever thereafter be rendered incapable of holding any office of honor, trust, or profit, of voting at any election, and of serving as a juror. famous, and in tions. OF PROCESS, INDICTMENT, ARRAIGNMENT, TRIAL, JUDGMENT, How persons may be admitted SECT. 173. It shall be the duty of the district court, when any indictment shall be found as a true bill, to make an to bail. order, fixing the amount of bail to each offence bailable by Clerks to issue process of arrest; &c. If offence not bailable. law, to be indorsed on the process by the clerk; and the sheriff, coroner, or other officer who shall arrest [may admit] the indicted person or persons to bail upon his, her, or their entering into a recognizance, with one or more securities, in the sum or sums specified on said process, which recognizance shall be made to the Territory of Dakota, conditioned for the appearance of the indicted person or persons, on the first day of the next district court to be holden in and for said county, to answer the said indictment, and not depart the court without leave, which recognizance shall be signed by the persons entering into the same, and certified by the officer taking it. Every recognizance so taken, is hereby declared to be valid and binding, and shall not be set aside or adjudged insufficient for want of form. SECT. 175. It shall be the duty of the clerks of the arrest, how made, district courts of each county of this territory, to issue process of capias for the apprehension of all persons indicted in said courts respectively, to be directed to the sheriff, coroner, and constable of the county where such indicted person or persons shall then be; and it shall be the duty of the sheriff, or, in case of his absence or inability, of the coroner or some one of the constables of the county to which said capias is directed, to arrest the person or persons therein named, and to let him or them to bail where the offence is bailable; or if the offence be not bailable, or not sufficient bail be offered, then the officer making the arrest shall bring his, her, or their bodies to the jail of the county where said capias is returnable, and deliver such accused person or persons, together with the capias, to the keeper of the jail, there to remain until disother counties. charged by due course of law. It shall also be the duty of any officer who shall take any recognizance in pursuance of this section, to return the same to the clerk by the first day of the court to which it may be returnable. It shall be lawful for any officer who has the custody of any prisoner or prisoners, by virtue of this section, to pass through any counties which lie in his route between the place of arrest and the county to which he is taking such prisoner or prisoners, and to lodge or deposit said prisoner or prisoners, in any jail on his route, for safe custody, for one night or more, as occasion may require; and it is hereby made the duty of the county commissioners' court of the county where such indictment Of arrests in shall be found, to pay to the officer who shall bring any Clerks issue subpoenas for tempt, &c. SECT. 176. It shall be the duty of the clerks of the district courts to issue subpœnas, either on the part of the territory or witness. Conof the accused, in any indictment directed, as in the preceding section, to any county in this territory. And every witness who shall be duly subpœnaed, and shall neglect or refuse to attend any district court, pursuant to the requisitions of such subpœna, shall be proceeded against and punished for contempt of the court. And attachments against witnesses who live in a different county from that where such subpoena is returnable, may be served in the same manner as capiases are directed to be served, out of the county from which they issue, in the preceding section. Venire not necessary in crimi panel of jurors SECT. 177. It shall not be necessary to issue a venire in any criminal case. And in all criminal cases where the panel nal case. If of jurors shall be exhausted, by challenges or otherwise, and exhausted. whether any juror has been elected and sworn or not, it shall be competent for the court to order on their minutes a tales for any number of jurors, not exceeding twenty-four, returnable instanter, out of which persons so ordered to be summoned, it shall be lawful to impannel a jury for the trial of any criminal case; but should the tales ordered be insufficient, by reason of challenges or otherwise, to form an impartial jury, the court may, from time to time, make such further orders on their minutes for additional talesmen, returnable instanter, until a full jury shall be obtained. SECT. 178. No bill of indictment for false imprisonment, or wilful and malicious mischief, shall be found a "true bill," by any grand jury, unless a prosecutor is indorsed thereon by the foreman of the grand jury, with the consent of the prosecutor, except the same shall be found upon the information and knowledge of two or more of the grand jury, or upon the information of some public officer in the necessary discharge Indictment for ment and mali false imprison cious mischief. |