Third: Being a party adverse to the defendant in a civil action, or having complained against, or been accused by him in a criminal prosecution.

Fourth: Having served on the grand jury which found the indictment, or on a coroners jury which inquired into the death of a person whose death is the subject of the indictment.

Fifth: Having served on a trial jury which has tried another defendant for the offence charged in the indictment.

Sixth: Having been one of a jury formally sworn to try the same indictment, and whose verdict was set aside, or which was discharged without a verdict after the cause was submitted to it. Seventh: Having served as a juror in a civil action brought against the defendant for the act charged as an offence.

Eighth: Having formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offence charged.

Ninth: If the offense charged be punishable by death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he shall neither be permitted or compelled to serve as a juror.

Exemption of service on a jury.

SEC. 280. An exemption from service on a jury is not a cause of challenge; but the privilege of the person exempted.

SEC. 281. Upon the trial of a challenge to an individual juror, the juror challenged may be examined on either side, and the rules of evidence applicable to the trial of other issues shall govern the admission or exclusion of testimony on the trial of the challenge. SEC. 282. In all challenges the court shall determine the law and the fact, and must either allow or disallow the challenge.

CHAPTER XXIX.

THE TRIAL.

SEC. 283. The jury, having been impanelled and sworn, the trial shall proceed in such order as the court may direct. Defendants tried separately or jointly.

SEC. 284. When two or more defendants are jointly indicted for felony, and defendant requiring it, may be tried separately. In other cases, defendants jointly indicted, may be tried separately or jointly, in the discretion of the court.

One defendant may be discharged and his evidence used for his

associates.

SEC. 285. When two or more persons are included in the same indictment, and the court is of the opinion that in regard to a particular defendant there is not sufficient evidence to put him on his

defence, an order may be made that he be discharged from the indictment before the evidence is closed, that he may be a witness for his co-defendants.

Effect of acquittal.

SEC. 286. The order mentioned in the last section shall be deemed an acquittal of the defendant, and shall be a bar to another prosecution for the same offence.

Trial for Conspiracy.

SEC. 287. Upon a trial for conspiracy in a case where an overt act is required by law to constitute the defence, the defendant cannot be convicted unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts alleged be proved; but other overt acts, not alleged in the indictment, may be given in evidence.

Proof in rape.

SEC. 288. Proof of actual penetration into the body, is sufficient to sustain an indictment for rape.

A conviction on testimony of accomplice.

SEC. 289. A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offence, and the corroboration is not sufficient if it merely show the commission of the offence or the circumstances thereof.

Of testimony on indictment for reducing female to prostitution.

SEC. 290. Upon a trial for enticing or taking away an unmarried female of previously chaste character, for the purpose of prostitution, or aiding or assisting therein, or for seducing and debauching any unmarried woman of previous chaste character, the defendant cannot be convicted upon the testimony of the person injured unless she be corroborated by other evidence tending to connect the defendant with the commission of the offence.

When facts proved constitute a higher offence than charged in indictment, defendant to be committed.

SEC. 291. If it appear, by the testimony, that the facts proved constitute an offence of a higher nature than that charged in the indictment, the court may direct the jury to be discharged, and all proceedings on the indictment to be suspended, and may order the defendant to be committed, or continue on bail to answer any new indictment which may be found against him for the higher offence.

SEC. 292. If the indictment for the higher offence be dismissed by the grand jury, or be not found at the next term, the court must proceed to try the defendant on the original indictment.

When jury to be discharged.

SEC. 293. The court may also discharge the jury where it appears that it has not jurisdiction of the offence, or that the facts,

as charged in the indictment, do not constitute an offence punishable by law.

When defendant must be discharged.

SEC. 294. If the jury be discharged because the court has not jurisdiction of the offence charged in the indictment, and it appear that it was committed out of the jurisdiction of this Territory, the defendant must be discharged.

If offence was committed in another county, the defendant to be held to await a warrant from that county.

SEC. 295. If the offence was committed within the exclusive jurisdiction of another county of this Territory, the court must direct the defendant to be committed for such time as shall be deemed reasonable, to await a warrant from the proper county, for his arrest; or if the offence be bailable, he may be admitted to bail in a recognizance, with sufficient sureties that he will, within such time as the court may appoint, render himself amenable to a warrant for his arrest, from the proper county, and if not sooner arrested thereon, will attend, at the office of the sheriff of the county where the trial was had, at a certain time, particularly designated in the recognizance, to surrender himself upon the warrant, if issued, or that the bail will forfeit such sum as the court may fix to be mentioned in the recognizance.

Papers to be transmitted to proper county.

SEC. 296. In the case provided for in the last section, the clerk shall forthwith transmit a certified copy of the indictment and all the papers in the action, filed with him, to the prosecuting attorney of the proper county.

Defendant to be discharged when no warrant issues from proper county.

SEC. 297. If the defendant be not arrested on a warrant from the proper county, he shall be discharged from custody, or his bail in the action shall be exonerated, or money deposited instead of bail, shall be refunded, as the case may be, and the sureties in the recognizance must be discharged.

SEC. 298. If he be arrested, the same proceedings must be had thereon, as upon the arrest of a defendant in another county on a warrant of arrest issued by a magistrate.

Proceedings when facts proved do not constitute punishable offence.

SEC. 299. If the jury be discharged because the fact set forth do not constitute an offence punishable by law, the court must order that the defendant, if in custody, be discharged therefrom; or if admitted to bail, that his bail be exonerated; or if he has deposited money instead of bail, that the money be refunded, unless, in its opinion, a new indictment can be framed upon which

the defendant can be legally convicted, in which case, the court may direct that the case be submitted to the same, or another grand jury.

Jury in certain cases to view the place where offence was committed.

SEC. 300. Whenever, in the opinion of the court, it is proper that the jury should view the place in which the offence was charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted, in a body, in the custody of proper officers, to the place which shall be shown them, by a person appointed by the court for that purpose. Proceedings when a juror is acquainted with any of the facts.

SEC. 301. If a person have any personal knowledge respecting a fact in controversy, in a cause, he must declare the same in open court, during the trial; and if, during the retirement of the jury, a juror declare any facts which could be evidence in the cause, as of his own knowledge, the jury must return into court, and the juror must be sworn as a witness, and examined in the presence of the parties.

SEC. 302. The persons sworn to try an indictment may, at any time before the submission of the cause to them, in the discretion of the court, be permitted to separate, or be kept in charge of a proper officer.

Jury not to converse about the trial.

SEC. 303. The jury shall also, at each adjournment of the court, whether they be permitted to separate, or be kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them.

Juror to be discharged when sick, and a new juror sworn.

SEC. 304. If, before the conclusion of a trial, a juror become sick, so as to be unable to perform his duty, the court may order him to be discharged, and in such case a new juror may be sworn, and the trial begin anew; or the jury may be discharged and a new jury then, or afterward, be impanelled.

One or more defendants may be convicted.

SEC. 305. Upon an indictment against several defendants, any one or more may be convicted or acquitted.

Questions of law to be decided by the court; Questions of fact determined by the jury.

SEC. 306. On the trial of an indictment for any offence, questions of law are to be decided by the court, saving the right of the defendant and the Territory to except. Questions of fact are to be tried by the jury; and although the jury have the power to find

a general verdict, which includes questions of law, as well as fact, they are bound, nevertheless, to receive as law what is laid down. as such by the court.

The court to charge jury on the law.

SEC. 307. In charging the jury, the court shall state to them all such matters of law as it may think necessary, for their information in giving their verdict.

Charge reduced to writing when demanded.

SEC. 308. The charge of the court to the jury must be reduced to writing, signed and filed with the clerk when required by either party.

Jury to be kept without meat or drink until they agree.

SEC. 309. After hearing the charge, the jury may either decide in court or retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, without meat or drink, unless otherwise ordered by the court, and not to permit any person to speak to them, nor to speak to them themselves, unless it be to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed.

Commitment of defendant.

SEC. 310. When a defendant having given bail appears for trial, the court may in its discretion at any time after his appearance for trial, order him to be committed to the custody of the proper officer, to abide the judgment or further order of the court, and he shall be committed and held in custody accordingly.

CHAPTER XXX.

Names of jurors to be called.

VERDICT.

SEC. 311. When the jury has agreed upon its verdict, it must be conducted into court by the officer having it in charge. The names of the jurors must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In such case the

cause may be again tried at the same or another term. Defendant to be present at rendition of verdict; Defendant in certain cases may be absent.

SEC. 312. If the indictment be for a felony or a crime punishable by imprisonment in the penitentiary, the defendant must be present at the rendition of the verdict. If it be for a crime punishable by fine or imprisonment in the county jail, the verdict may be rendered in his absence.

Jury to be interrogated and declare their verdict.

SEC. 313. When the jury have answered to their names, the court or the celrk shall ask them whether they have agreed upon