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

1751. Indictment-How found.-110. At least five of the grand ju rors must concur in the finding of an indictment; and when so found it must be signed by the prosecuting attorney; and it must also be endorsed by the foreman of the grand jury, "A true bill," and he must subscribe his name thereon as foreman.

See sections 1738-1748, Burns' R. S. 1901, and notes.

1752. Neglect to sign-Court order.-111. As soon as the grand jury has returned an indictment into court, the judge must examine it; and if the foreman has neglected to endorse it, "A true bill," with his name signed thereto, or if the prosecuting attorney has neglected to sign his name, the court must cause the foreman to endorse it, or the prosecuting attorney to sign it, as the case may require, in the presence of the jury. See notes to section 1739, Burns' R. S. 1901.

1753. Names of witnesses.-112. When an indictment is presented by the grand jury, the names of all the material witnesses must be indorsed upon the indictment; but other witnesses may afterwards be subpoenaed by the state; but unless the names of such witnesses be indorsed on the indictment at the time it is presented, no continuance shall be granted to the state on account of the absence of any witness whose name is not thus indorsed.

See notes to section 1740, Burns' R. S. 191.

1754. Record of indictment.-113. As soon as an indictment is presented and examined by the court, the clerk shall file the same and indorse thereon the date of such filing; and he shall then record such indictment, with its indorsements, in a record book to be kept for that purpose, and the clerk, before the last day of the term at which the same is presented, must compare the record with the original indictment and certify to the corretness thereof.

See notes to section 1741, Burns' R. S. 1901.

1755. Motion for dismissal.-114. No criminal cause shall be dismissed except by order of the court on motion of the prosecuting attorney; and such motion must be in writing, and the reasons therefor

must be stated in such motion and read in open court before such order is made; and the mere number of prosecutions against the same person. shall not be a reason for dismissing any of such causes.

See notes to section 1742, Burns' R. S. 1901.

Whenever an indict

1756. Lost indictment-Trial on copy.-115. ment is lost, mislaid, stolen or destroyed, and the same shall have been recorded and certified, such record, or a copy thereof, certified to be a true copy by the clerk of the court to which such indictment was presented, shall be sufficient evidence of the finding of such indictment and the contents thereof; and the defendant may be tried upon such copy, and the trial thereon shall proceed and be determined in the same manner, and have the same binding force and effect, as if the original indictment were present, without any delay from that cause.

See notes to section 1743, Burns' R. S. 1901.

If an affidavit and information are lost and new ones are substituted, the new ones need not be copies of the originals. Goodman v. State, 161 Ind. 629.

1757. Inspection of indictment.-116. Indictments against persons not in custody or who have not given bail, and the records of such indictments shall be in the custody of the clerk, and can not be inspected by any person, except the court, the clerk and his deputy, and the prosecuting attorney, until after the arrest of the defendant.

1758. Disclosure-Contempt.-117. No grand juror, prosecuting attorney, clerk, judge or other officer shall disclose the fact that an indictment is found until the defendant has been arrested, except any disclosure that may be necessarily incident to the issue and service of a warrant to arrest the defendant. A violation of this and the next preceding section is punishable as a contempt.

1759. Prosecution by affidavit.-118. All public offenses, except treason and murder, may be prosecuted in the circuit or criminal court, by atidavit filed in term time, in all cases except when the grand jury is in session or a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit.

See notes to section 1748, Burns' R. S. 1901.

When

1760. Prosecutor's approval-Witnesses-Continuance.-119. any such affidavit has been made, as provided in the last section, the prosecuting attorney shall approve the same by indorsement, using the words "approved by me" and sign the same as such prosecuting attorney and indorse thereon the names of all the material witnesses; after which such affidavit shall be filed with the clerk, who shall indorse thereon the date of such filing, and record the same as in the case of an indictment, as provided in section one hundred and thirteen of this act. Other witnesses may afterwards be subpoenaed by the state; but unless the names of such witnesses be indorsed on the affidavit at the time it is filed, no continuance shall be granted to the state on account of the absence of any witness whose name is not thus indorsed. And the record of such

affidavit and indorsements thereon, or a copy thereof certified to be a true copy by the clerk of the court, shall be sufficient evidence of the making and filing of such affidavit and the contents thereof; and the defendant may be tried upon such copy, all as provided in section one hundred and fifteen of this act in case of trial on copy of indictment.

The obtaining of leave to amend when an affidavit and information is quashed, is not a waiver by the state of the error committed in the ruling to quash. State v. Wilson, 156 Ind. 343.

If a witness is summoned to appear before a justice of the peace to testify as to violations of criminal laws, and when so appearing he makes an affidavit charging a crime, an information based on such affidavit will not be abated although such witness might have refused to testify or make such affidavit. West v. State, 32 App. 161.

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

1761. Arrest defined.-120. Arrest is the taking of a person into custody, that he may be held to answer for a public offense.

See sections 1749-1796, Burns' R. S. 1901, and notes.

1762. Issuance of warrant.-121. When an indictment is found, the court may direct the clerk to issue a warrant returnable forthwith. If no order is made, the clerk shall issue a warrant upon all indictments within ten days after the close of the term. Warrants must be issued upon affidavits as soon as they are filed. When a warrant issues to the

sheriff of the county where the indictment was presented or affidavit filed, he may pursue and arrest the accused in any county and commit him to jail or hold him to bail, as provided in this act. When a warrant issues to the sheriff of another county, he shall at once arrest the aceused, if he can be found, and convey him to the county from which such warrant issued, or hold him to bail as provided in this act.

See notes to section 1750, Burns' R. S. 1901.

Criminal prosecutions are deemed commenced from the time of the return of indictments whether warrants are issued or not, the case of Flick v. State, 22 App. 550, being disapproved. Gardner v. State, 161 Ind. 262.

1763. Warrants to different counties.-122. The warrant issues to the sheriff of the county where the indictment or affidavit is filed, unless the prosecuting attorney directs the warrant to be issued to some other county. Warrants may issue to different counties at the same time; the sheriff must execute the warrant and serve all subpoenaes immediately upon their delivery to him.

1764. Warrant, form.—123. The warrant of arrest is an order in writing, issued in the name of the State of Indiana, signed by the clerk and attested by the seal of the court, commanding the arrest of the defendant. If issued during term time and returnable forthwith, it may be substantially in the following form:

State of Indiana.

To the sheriff of ... ...... county, greeting:

You are commanded to arrest

if he may be found

in your county, so that you have him before the judge of the court instanter, then and there to answer the State of Indiana on a charge of .. and abide the order of the court thereupon, and return

this writ.

.......

Witness the clerk and seal of said court this .... day of

A. D. 19....

(Seal)

Clerk,

And if other than a bench warrant, it may be substantially in the following form:

of the next term of the

house in .... .. on the

forthwith and

.... dollars, to answer on the first day court, to be holden at the court 19...., to an

Monday in

indictment (or affidavit) filed in said court, for

and for want of bail commit him to the jail of the county until legally

1765.

Bail-Court-Sheriff.-124. The court, on the first day of each term, must order the amount, in which persons charged by an indictment or affidavit are to be held to bail, and the clerk must enter such order on the order book, and he must indorse the amount on each warrant when issued. If no order fixing the amount of bail has been made, the sheriff may present the warrant to the judge of the circuit or criminal court, and such judge must thereupon indorse the amount of bail to be required.

See notes to section 1753, Burns' R. S. 1901.

1766. Corporation, summons.-125. When an indictment is returned, or an affidavit filed against a corporation, a writ of summons commanding the sheriff to notify the accused thereof, and returnable on the tenth day after its date, shall issue. Such summons, together with a copy of the indictment or affidavit, shall be served and returned in the manner provided for the service of summons upon such corporations in civil actions. The corporation, on or before the return day of a summons duly served, may appear by one of its officers, or by counsel, and answer to the indictment or affidavit by motion or plea, and, upon its failure to make such appearance and answer, the clerk shall enter a plea of "not guilty;" and, upon such appearance being made or plea entered, the corporation shall be deemed thenceforth continuously present in court until the case is finally disposed of.

See notes to section 1754, Burns' R. S. 1901.

1767.

Bailable offenses.-126. All offenses other than murder or treason shall be bailable by sufficient sureties. Murder or treason shall not be bailable when the proof is evident or the presumption strong. See notes to section 1755, Burns' R. S. 1901.

1768.

Arrest-How made.-127. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, but the defendant shall not be subject to any more restraint than is neccessary for his arrest and detention.

See notes to section 1756, Burns' R. S. 1901.

1769. Officer's authority.-128. The officer must inform the defendant that he acts under the authority of a warrant, and must show the warrant if required.

See notes to section 1757, Burns' R. S. 1901.

1770.

Arrest Means.-129. If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all neccessary means to effect the arrest.

See notes to section 1758, Burns' R. S. 1901.