+433.1869 ensues in any county thereof, such offence may be prosecuted and pun- R. S. 133, § 9. ished in the county where the death happens. criminal prose R. S. 136, § 16. See Ch. 63, § 99. SECT. 20. An indictment for the crime of murder may be found at Limitation of any period after the death of the person alleged to have been mur- cutions. dered; all other indictments shall be found and filed within six years after the commission of the offence; but any period during which the party charged was not usually and publicly resident within this state, shall not be reckoned as part of the six years. SECT. 21. If the grand jury find and return to the court an indict- Indictment for ment for a crime punishable with death, process shall be forthwith issued for the arrest of the party charged, if he is not already in custody. fence. a capital of R. S. 136, § 17. copy of, to be oner, &c. 1844, 44, § 4. §§ 9, 20-25. SECT. 22. As soon as may be after the finding of such indictment, the party charged, when in custody, shall be served with a copy thereof by the sheriff or his deputy, with an order of the court notifying him, if the indictment is found in the county of Dukes County, that the R. S. 136, §§ 18, indictment will be entered at the supreme judicial court next to be held 19. in the county of Barnstable, and if found in any other county, at the 5 Cush. 397. term of said court next to be held for the same county, or in either See Ch. 112, case at any intermediate time before the next term of the court, when the court may be in session in the county. SECT. 23. The clerk of the superior court, when such an indictment is found, shall forthwith give notice thereof to the chief or first justice of the supreme judicial court, and shall transmit the indictment to said court, at the next term or any intermediate time, as mentioned R. S. 136, $$ 18, in the preceding section, where it shall be entered. The supreme judi- 1844, 44, § 4. cial court shall have cognizance and jurisdiction thereof, and proceed- 1859, 196. ings shall be had thereon, in the same manner as if the indictment had 5 Cush. 397. been found in that court. ८ notice of, to chief justice of S. &c. R. S. 82, § 26. 20. have copy of, 13 Mass. SECT. 24. Any prisoner indicted for a crime punishable with death, prisoner to or imprisonment for life in the state prison, shall, on demand upon the &c. clerk by himself or his counsel, have a list of the jurors returned de- R. S. 136, § 23. livered to him, and shall also have process to summon such witnesses 1859190,521. as are necessary to his defence, at the expense of the commonwealth. SECT. 25. Every person indicted for an offence for which he may be what other imprisoned in the state prison, if he is under recognizance or in custody titled to copy to answer for such offence, shall be entitled to a copy of the indictment of indictment, R. S. 136, § 24. and all indorsements thereon, without paying fees therefor. prisoners en sue subpoenas. SECT. 26. The attorney-general and other prosecuting officers may Prosecuting of in all cases issue subpoenas for witnesses to appear and testify on behalf ficers may isof the commonwealth, and the subpoena, under the hand of such officer, R. S. 136, § 25. shall have the same force, and be obeyed in the same manner, and under the same penalties in case of default, as if issued by the clerk. state not en advance, &c. SECT. 27. Witnesses summoned in behalf of the commonwealth witnesses for shall be bound to attend without the payment of fees, and shall be pun- titled to fees in ishable for non-attendance; but if they satisfy the court of their inability to defray their expenses, the court shall order their fees which have accrued to be paid, and may make such further order for the payment of their fees as may be deemed reasonable. The court may at each term pass a general order for the payment of the fees of such wit nesses. R. S. 136, § 26. prosecutions to party in SECT. 28. When an indictment is found against a person for an as- What criminal sault and battery or other misdemeanor for which the party injured may may be stayed have a remedy by civil action, except where the offence was committed upon reparation by or upon a sheriff or other officer of justice, or riotously, or with jured. intent to commit a felony, or is punishable by imprisonment in the state R. S. 136, § 27. prison, if the party injured appears in court where the indictment is pending, and acknowledges satisfaction for the injury sustained, the court may, on payment of the costs accrued, order all further pro 1846, 198. Prisoner refusing to plead. Need not be asked how he R. S. 136, 9$ 28, 29. 10 Met. 222. will be tried. when to be tried. R. S. 136, § 30. 15 Mass. 277. Plea in abate ment, when to be verified. ceedings to be stayed, and discharge the defendant from the indict ment, which shall forever bar all remedy for such injury by civil action. 3 SECT. 29. If on arraignment a person refuses to plead or answer, or does not confess the indictment to be true, the court shall order plea of not guilty to be entered, and thereupon the proceedings shall be the same as if he had pleaded not guilty. It shall not be necessary in any case to ask a prisoner how he will be tried. SECT. 30. Every person held in prison upon an indictment shall, if he requires it, be tried at the next term of the court after the expi ration of six months from the time when he was imprisoned, or shall be bailed upon his own recognizance, unless it appears to the satisfaction of the court that the witnesses on behalf of the government have been enticed or kept away, or are detained and prevented from attending the court by sickness or some inevitable accident. SECT. 31. When to an indictment a plea in abatement or other dilatory plea is offered, the court may refuse to receive such plea, until its R. S. 136, § 31. truth is proved by affidavit or other evidence. Commission to examine witnesses, how granted. R. S. 136, § 32. 5 Met. 427. Such commis SECT. 32. When upon an indictment an issue of fact is joined, the court may, on application of the defendant, grant a commission to examine any material witnesses residing out of this state, in the same manner as in civil causes; the prosecuting officer may if he sees fit join in such commission, and name any material witnesses to be examined on the part of the commonwealth. SECT. 33. When such commission is issued, the interrogatories to be sions, how exe- annexed thereto shall be settled, and the commission executed and recuted, and depositions, how turned, in the manner prescribed by law in relation to commissions in used. R. S. 136, § 33. civil cases, and the depositions taken thereon and returned shall be read in the same cases, with the like effect and subject to the same exceptions, as in civil cases: provided, that when the defendant declines to use on his trial the deposition so taken, the prosecuting officer shall not make use of any deposition taken on the part of the commonwealth, without the defendant's consent. Civil remedies not barred by proceedings in SECT. 34. No proceedings against a person for a criminal offence shall prevent or bar any civil action which might otherwise be maincriminal cases. tained by a party aggrieved by the commission of the offence. 1851, 151, § 6. 1856, 123, § 6. Issues of fact, how tried. B. S. 137, § 1. SECTION 1. Issues of fact joined upon indictments shall be tried by a jury drawn and returned in the manner prescribed by law for the trial of issues of fact in civil causes. SECT. 2. No member of the grand jury which has found an indict- No grand juror ment shall be put upon the jury for the trial thereof. R. S. 137, § 2. to be on trial jury. defendants, at- peremptory, R. S. 137, § 5. when allowed. SECT. 3. Every person indicted for an offence, and the attorney-gen- Challenges by 84 16 2 eral, or other officer prosecuting an indictment on behalf of the commonwealth, shall, when the jury is empanelled for the trial, be entitled to the challenges allowed by law to parties in civil causes. SECT. 4. A person put on trial for an offence punishable with death, or imprisonment for life in the state prison, shall be allowed to challenge peremptorily twenty of the persons returned as jurors, and no more. 1859, 196, § 21. SECT. 5. No person whose opinions are such as to preclude him from finding a defendant guilty of an offence punishable with death, shall be compelled or allowed to serve as a juror on the trial of an indictment for such offence. SECT. 6. The following oath shall be administered to the jurors for the trial of all criminal cases not capital: You shall well and truly try the issue between the commonwealth and the defendant, (or the defendants, as the case may be,) according to your evidence; so help you, God. In capital cases the following oath shall be administered to the jurors: You shall well and truly try, and true deliverance make, between the commonwealth and the prisoner at the bar, whom you shall have in charge, according to your evidence; so help you, God. What opinions rors in capital R. S. 137, § 6. Oaths of jurors. R. S. 137, § 7. R. S. 137, § 8. SECT. 7. A juror who is conscientiously scrupulous of taking either Affirmation of of the oaths above prescribed, shall be allowed to make affirmation, sub- jurors. stituting the words, "this you do under the pains and penalties of perjury," instead of the words, "so help you, God." &c. present at trial, SECT. 8. No person indicted for a felony shall be tried unless per- When defendsonally present during the trial; persons indicted for smaller offences ant is to be may at their own request, by leave of the court, be put on trial in their absence, by an attorney duly authorized for that purpose. SECT. 9. The court may order a view by a jury empanelled to try criminal case. 5 Cush. 298. 1859, 160. 10 Cush. 69. a Court may or der view. R. S. 137, § 10. Defendant rely- cense must 1844, 102, 1h 1864 ch 121 Defence in cases R. S. 133, § 6. SECT. 10. In all criminal prosecutions in which the defendant relies for his justification upon any written license, appointment, or certificate of authority, he shall prove the same, and until such proof, the presumption shall be that he is not so authorized. SECT. 11. In a prosecution for writing or publishing a libel, the defendant may give in evidence in his defence upon the trial, the truth of the matter contained in the publication charged as libellous, and such evidence shall be deemed a sufficient justification, unless malicious intention is proved. SECT. 12. In the prosecution of offences in relation to or affecting Proof of ownerreal or personal estate, it shall be sufficient, and shall not be deemed a ship of property, variance, if it is proved on the trial, that at the time when the offence R. S. 133, § 11. was committed, either the actual or constructive possession, or the gen- 14 Mass. 217. eral or special property, in the whole or any part of such real or per- 10 Met. 422. sonal estate, was in the person or community alleged to be the owner thereof. 13 Met. 68. 4 Mass. 163. &c. 1 Mass. 476. SECT. 13. When an offence is alleged to have been committed in the Time included night time, the time called night time shall be deemed to be the time in "night between one hour after the sun-setting on one day and one hour before 1847, 13. sun-rising on the next day; and in all cases the time of sun-setting and sun-rising shall be ascertained according to mean time in the place where the offence is committed. SECT. 14. When a person indicted is at the time appointed for the trial found to the satisfaction of the court to be insane, the court may cause him to be removed to one of the state lunatic hospitals for such a term and under such limitations as they may direct. 71 106 Grah, 599. 1 Gray, 495. Prisoner found insane to be 1849, 68. 1853, 318. 108 183. 17 Mars 59 Jury may de cide the law and 20 Pick. 222. Proceedings on SECT. 15. The jury shall try, according to established forms and principles of law, all criminal causes committed to them, and after having received the instructions of the court, shall decide, in their discretion, by a general verdict, both the fact and the law involved in the issue, or may at their election find a special verdict. The court shall superintend the course of the trials, decide upon the admission and rejection of evidence, and upon all questions of law raised during the trials, and upon all collateral and incidental proceedings, and shall also charge the jury. SECT. 16. When a person indicted for a felony is on trial acquitted by the verdict of part of the offence charged, and convicted of the residue, such verdict may be received and recorded by the court, and thereupon the person indicted shall be adjudged guilty of the offence, if any, which appears to the court to be substantially charged by the residue of the indictment, and shall be sentenced and punished accord3 ingly. R. S. 137, § 11. on acquittal Peti SECT. 17. When a person indicted for an offence is on trial acquitted by the jury, by reason of insanity, the jury, in giving their verdict of not guilty, shall state that it was given for such cause, and thereupon if his discharge or going at large is deemed manifestly dangerous to the peace and safety of the community, the court may order him to be committed to one of the state lunatic hospitals; otherwise he shall be discharged. SECT. 18. No prisoner or person under recognizance, who is acquitted by verdict, or discharged because no indictment has been found against K. S. 137, § 13. him, or for want of prosecution, shall be liable for any costs or fees of office, or for any charge for subsistence while he was in custody. Persons acquit Certain defects R. S. 137, § 14. 6 Greenl. 148. 7 Mass. 9. 11 Mass. 279. Prosecutions may be discon- of selectmen, 1853, 179, § 2. SECT. 19. No indictment, and no complaint before a justice of the peace or police court, shall be quashed or deemed invalid, nor shall the judgment or proceedings thereon be arrested or affected, by reason of the omission or misstatement of the title, occupation, estate, or degree, of the defendant, or of the name of the city, town, county, or place, of his residence; nor by reason of the omission of the words "force and arms," or the words "against the peace," nor by reason of omitting to charge any offence to have been committed contrary to the form of the statute or statutes: provided, that such omission or misstatement does not tend to the prejudice of the defendant. SECT. 20. In all prosecutions before a police court or justice of the peace, under the by-laws of a city or town, the city solicitor, or other person appointed by the board of aldermen or selectmen of such city or town, may enter a nolle prosequi, or do any other matter or thing which may be done by a district-attorney in criminal prosecutions. APPEALS. conviction be R. S. 85, § 28. R. S. 86. R. S. 87, § 36. R. S. 138, § 1. 1815, 166, § 2. 1849, 31. 1859, 196. SECTION 1. Every person convicted of an offence before a justice of Appeal from the peace or police court, may appeal from the sentence to the superior fore justices of court then next to be held in the same county. The appellant shall be of peace, &c. committed to abide the sentence of said court until he recognizes to the commonwealth in such reasonable sum and with such sureties as the justice or court requires, with condition to appear at the court appealed to, and at any subsequent term to which the case is continued, if not previously surrendered and discharged, and so from term to term, until the final decree, sentence, or order of the court thereon, and to abide such final sentence, order, or decree, and not depart without leave, and in the mean time to keep the peace and be of good behavior. SECT. 2. On such appeal the justice or court shall have the same Witnesses to be authority to bind by recognizances witnesses in the case, as they have recognized, &c. by chapter one hundred and seventy when a prisoner is admitted to bail or committed. 3 Gray, 476. Gray, 342. 7 Gray, 317. 1856, 130. &c. SECT. 3. The justice or court shall on such appeal make a copy of Justice's duty, the conviction and other proceedings in the case, and transmit the same, Fees, how paid. together with the recognizance, if any is taken, to the clerk of the court R. S. 138, §2. appealed to. The fees of the justice therefor shall be paid from the 2 Met. 18. county treasury in like manner as other costs in criminal prosecutions. SECT. 4. The appellant shall not be required to advance any fees Appellant not upon claiming his appeal, nor in prosecuting the same, but if convicted required to adin the court appealed to, or if sentenced for failing to prosecute his ap- R. S. 138, § 3. peal, he may be required, as part of his sentence, to pay the whole or any part of the costs of prosecution. vance fees, &c. prosecuted, ap SECT. 5. If the appellant fails to enter and prosecute his appeal, he If appeal not shall be defaulted on his recognizance, if any was taken, and the su- pellant to be perior court may award sentence against him for the offence whereof he sentenced. was convicted, in like manner as if he had been convicted in that court; and if he is not then in custody, process may be issued to bring him into court to receive sentence. SECT. 6. When upon suit brought on a recognizance to prosecute an appeal, the penalty is adjudged to be forfeited, or when, by leave of court, such penalty has been paid to the county treasurer or the clerk of the court without a suit, or before judgment is given as provided in chapter one hundred and seventy, if by law any forfeiture accrues to person by reason of the offence of which the appellant was convicted, the court may award to him such sum as he may be entitled to out of the forfeiture. NEW TRIALS. a R. S. 138, § 4. 1859, 196. When on forfeited recognizance penalty accrues to a person, it may be awarded by court. R. S. 138, § 9. New trials, how . S. 82, § 30. granted, &c. SECT. 7. The supreme judicial court and superior court may at the term in which the trial of any indictment is had, or within one year thereafter, on the petition or motion in writing of the defendant, grant R. S. 86, § 11. R. S. 138, § 11. a new trial for any cause for which by law a new trial may be granted; 1855, 152. or when it appears to the court that justice has not been done; such terms or conditions as the court shall direct. and on 1859, 196. REPORTS. 1859, 196. SECT. 8. If, upon the trial of a person convicted in the superior Reports of cases by judge. court, any question of law arises which, in the opinion of the presiding R. S. 138, § 12. judge, is so important or so doubtful as to require the decision of the supreme judicial court, he shall, if the defendant desires it or consents thereto, report the case, so far as may be necessary to present the question of law arising therein; and thereupon all further proceedings in that court shall be stayed. |