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state, in good standing, to act as judge in such cause; and such attorney, if he consent to serve, shall be qualified as other judges, and his appointment and oath shall be filed with the clerk, and be entered on the order book, and he shall have power to hear and determine such cause until the same is finally disposed of.

See notes to section 1839, Burns' R. S. 1901.

1846. Judge of kin-Special judge.-205. No judge of any court. shall preside in or try any criminal cause, where he is related to the defendant by marriage or by blood, within the sixth degree of consanguinity, nor where he has been of counsel in the cause, either for the state or for the defendant; and in either of such cases it shall be the duty of the regular judge to select a special judge to try such cause. 1847. Motion by prosecutor.-206. In case any prosecuting attorney shall file a written motion in any criminal cause, showing either of the grounds of disqualification mentioned in the preceding section, such judge shall thereupon cease to preside in the trial of such cause, and the regular judge shall select a special judge to preside therein, as in other cases of change of venue.

1848. Change from county.-207. When affidavits for a change of venue are founded upon excitement or prejudice in the county against the defendant, the court, in all cases not punishable by death, may, in its discretion, and in all cases punishable by death, shall grant a change of venue to the most convenient county. The clerk must thereupon immediately make a transcript of the proceedings and orders of the court, and having sealed up the same with the original papers, shall deliver them to the sheriff, who must, without delay, deposit them in the clerk's office of the proper county, and make his return accordingly: Provided, however, That only one change of venue from the judge and only one change from the county shall be granted. See notes to section 1840, Burns' R. S. 1901.

1849. Jurisdiction-Proceedings. 208. The jurisdiction of the court to which the change of venue is granted shall be complete, and the cause must be docketed and stand for trial at the first term thereafter; and such court shall take cognizance of such cause and proceed therein to trial, judgment and execution, in all respects as if the indictment therein had been found and returned by a grand jury impaneled in such court, or if the affidavit had been originaly filed therein.

See notes to section 1841, Burns' R. S. 1901.

1850. Removal of accused.-209. The sheriff of the county from which the venue is taken, when such defendant is in custody, shall, under the order of the court, transfer and deliver him to the sheriff of the county to which such change is allowed; and upon such transfer and delivery, with a certified copy of such order of change, the sheriff

last mentioned shall receive and detain the defendant in his custody until legally discharged therefrom, and give a certificate of such delivery to the other sheriff.

1851. New prosecution-Election as to county.-210. If it shall be necessary to institute a new prosecution for the same offense after such change of venue has been taken, the defendant in such case shall elect, when so required by the court, whether such further prosecution shall be instituted in the court to which or in that from which such change was taken; and thereupon he may be recognized to appear in the court which he elects, or be committed for want of bail, detained in custody or remanded to the county from which the change was taken, as the case may require.

See note to section 1843, Burns' R. S. 1901.

1852. Recognizance Record-Copy.-211. If the defendant give recognizance to appear before the circuit or other proper court of the county from which the change of venue was taken, such recognizance shall be taken of record; and a copy thereof, certified under the seal of the court, shall be delivered to the clerk of the court to which he is recognized, and shall be recorded by such clerk in like manner and have the same force and effect in such last mentioned court as if originally taken therein.

1853. Indictment or affidavit-Allegations.-212. If on such new prosecution such defendant be prosecuted for such offense in the court to which such change of venue was taken, such new indictment may be found, or affidavit filed, and prosecuted to final execution therein, as if such offense had been committed in the county of such court; but the indictment or affidavit in such case shall state how the proceeding came into the court where the party elects to be tried, and that he has elected to be tried in such county.

1854. When remanded.-213. If such defendant refuse to elect in which county such new prosecution may be instituted, he shall be recognized to appear before or be remanded to the proper court of the county from which the change of venue was taken, in like manner as if he had elected to be proceeded against in such county.

1855. Costs of change.-214. In all changes of venue from the county, the county from which the change was taken shall be liable for the expenses and charges of removing, delivering and keeping the prisoner, and the per diem allowance and expenses of the jury trying the cause, and any of the regular panel in attendance and not engaged in the trial, and all other expenses necessarily incurred by the county to which the change is taken consequent upon such change of venue.

See notes to section 1847, Burns' R. S. 1901.

1856. Costs How taxed collection. 215. All costs and charges specified in the last preceding section, or coming justly and equitably

within its provisions, shall be audited and allowed by the court trying such cause, and certified to the auditor of the county from which the change of venue was first taken, to be collected by the auditor of the county to which the change was taken; but where specific fees are allowed by law for any duty or service no more or other costs shall be allowed therefor than could be legally taxed in the court from which such change was taken.

See notes to section 1848, Burns' R. S. 1901.

When a cause is removed from one county to another on change of venue, the amount of cost charged by the court trying the cause against the county from which the cause was removed is not conclusive against the latter county. Board v. Board, 27 App. 378.

1857. Attorney, appointment-Allowance.-216. Whenever in any criminal prosecution, a change of venue shall have been taken from the county in which such prosecution originated, the trial court shall have authority to appoint counsel on behalf of such original county, to prosecute such action, or to defend any poor person defendant therein. Counsel so appointed shall be entitled to reasonable compensation for services in such cause, but the amount thereof shall be settled and allowed by the judge of the court from which the change of venue was first granted.

1858. Sheriff's expenses.-217. The sheriff, for delivering a prisoner to the sheriff of another county, under provisions of this act in relation to change of venue, shall receive the actual and necessary traveling expenses of himself and prisoner, to be allowed by the court from which such change of venue is taken.

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

1859. Affidavit of accused.—218. A motion by the defendant to postpone the trial on account of the absence of evidence can be made only on affidavit showing materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if the postponement be asked on account of an absent witness, the affidavit must show the name and residence of the witness, if known, and the probability of procuring his testimony within a reasonable time. The affidavit must further show that the absence of such witness has not been procured by the act or connivance of the defendant, nor by others at his request, nor with his knowledge and consent, and what facts he believes the witness will testify to, and that he believes them to be true, and that he is unable to prove

such facts by any other witness whose testimony can be as readily procured. If, thereupon, the prosecuting attorney will admit the truth of the facts which the defendant, in his affidavit for a continuance, alleges that he can prove by the absent witness, or by the written or documentary evidence therein specified and described, the trial shall not be postponed for that cause.

See sections 1850-1853, Burns' R. S. 1901, and notes.

1860. Application by prosecutor.-219. Whenever the prosecuting attorney desires to obtain a postponement of the trial of a criminal cause on account of the absence of any witness whose name is indorsed on the indictment or affidavit, such continuance shall be granted on his official statement in manner and form as specified in the preceding section; but the defendant may require the same to be in writing. If the defendant will admit that the facts which the prosecutor states he expects to prove are true, the trial shall not be postponed for that cause. And no defendant shall be detained in jail, without a trial, on an indictment or affidavit, for a continuous period embracing more than two terms after his arrest and commitment thereon; or, if he was in jail at the time the indictment was found or affidavit filed, more than two terms after the term at which the indictment was found or the affidavit first filed; except where a continuance was had on his own motion, or the delay was caused by his act, or where there was not sufficient time to try him during such terms.

See notes to section 1851, Burns' R. S. 1901.

1861. Discharge for delay.-220. No person shall be held by recognizance to answer an indictment or affidavit, without trial, for a period embracing more than three terms of court, not including the term at which a recognizance was first taken thereon, if taken in term time; but he shall be discharged unless a continuance be had upon his own 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. May 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 discharged.

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

ARTICLE 13.-RIGHTS OF ACCUSED ACCESSORIES.

SEC.

1863. When accused must be present. 1864. When accused may be absent. 1865. Accessory before the fact.

SEC.

1866. Accessory in another state.
1867. Accessory after 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 personally 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 undertaking must be in writing, and will be as effective as if entered after judgment.

See notes to section 1856, Burns' 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 manner as if he were a principal, either before or after the principal offender 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, Burns' 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 instrument 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 instrument 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 perpetrate a felony in another state which by the laws of this state is a felony, shall be deemed guilty of a felony; 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 essential 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, Burns' R. S. 1901.

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