and all recognizances and examinations by him taken, and may commit to the jail of the county, any witness who shall refuse to recognize in such manner as he shall direct. TITLE XXXI. CHAPTER 168. process for ar SEC. 10. If any person charged by the inquest with having commit- Justice may issue ted any such offence, shall not be in custody, the justice of the peace rest of person shall have power to issue process for his apprehension, and such war- charged. rant shall be made returnable before him or any other magistrate or court having cognizance of the case, who shall proceed thereon in the manner that is required of magistrates in like cases. cause body to be SEC. 11. When any justice of the peace shall take an inquest upon When justice to the view of the dead body of a stranger, or being called for that pur- buried; costs, pose, shall not think it necessary, on view of such body, that an in- how paid. quest should be taken, he shall cause the body to be decently buried; and if the justice of the peace shall certify that to the best of his knowledge and belief the person found dead was a stranger not belonging to this state, the expenses of burial, with the justice's fees, and all the expenses of the inquisition, if any was taken, shall be paid to the justice of the peace from the state treasury, the account of such expenses and fees being first allowed by the circuit court for the county; in all other cases the expenses and fees shall be paid by the county in which the inquisition was taken. OF JUDGMENTS CHAPTER 168. IN CRIMINAL CASES, AND THE EXECUTION THEREOF. SECTION 1. Whenever any person shall be lawfully sentenced by any court to imprisonment in the state prison, or in any county jail, it shall be competent for the court awarding the sentence, to incorporate therein a provision, that the person so sentenced shall be kept in solitary confinement, or at hard labor, or both, during the term of such imprisonment, or any specific portion thereof. SEC. 2. When any person shall be convicted of an offence punish- Conditional senable at the discretion of the court, either by fine or imprisonment in tences. the county jail, or by a fine or imprisonment in the state prison, the court may award against such offender a conditional sentence, and order him to pay a fine, with or without the costs of prosecution, within a limited time, to be expressed in the sentence, and in default thereof, to suffer such imprisonment as is provided by law and awarded by the court. SEC. 3. The person against whom any such conditional sentence Ib. shall be awarded, shall be forthwith committed to the custody of an officer in court, or to the county jail, to be detained until the sentence be complied with; and if he shall not pay the fine within the time limited, the sheriff shall cause the other part of the sentence to be executed forthwith. power of court. SEC. 4. Whenever it is provided that an offender shall be punished Discretionary by imprisonment in the county jail and a fine, such offender may, at 1839, p. 233, § 52. the discretion of the court, be sentenced to be punished by such imprisonment without the fine, or by such fine without the imprisonment; and whenever it is provided that an offence shall be punished TITLE XXXI. by fine or imprisonment, the court may impose both such fine and imprisonment, in its discretion. CHAPTER 168. Recognizances to keep the peace. Proceedings on forfeiture. Sheriff to exe. cute sentence. Ib. Person convicted of capital offence to hard labor in state prison, un to be sentenced til, &c. Person sentenced to death not to be executed &c. SEC. 5. Every court before whom any person shall be convicted upon an indictment for any offence not punishable with death, or by imprisonment in the state prison, may, in addition to the punishment prescribed by law, require such person to recognize with sufficient sureties, in a reasonable sum, to keep the peace, or to be of good behavior, or both, for any time not exceeding two years, and to stand committed until he shall so recognize. SEC. 6. In case of a breach of the condition of any [such] recognizance, the same proceedings shall be had as are prescribed in relation to recognizances to keep the peace in other cases. SEC. 7. When any person, convicted of an offence, shall be sentenced to pay a fine or costs, or to be imprisoned in the county jail, the clerk of the court shall, as soon as may be, make out and deliver to the sheriff of the county, or some officer in court, a transcript from the minutes of the court, of the conviction and sentence, duly certified by such clerk, which shall be sufficient authority for the sheriff to execute such sentence, and he shall execute the same accordingly. SEC. 8. When any convict shall be sentenced to imprisonment in the state prison, the clerk of the court before whom such conviction was had, shall make out a warrant under the seal of the court, directed to the sheriff of the county, requiring him to cause such convict, without needless delay, to be removed from the county jail to the state prison, which warrant shall be delivered to such sheriff, and be obeyed by him, and shall be accompanied by a certified abstract from the minutes of the court, of such conviction and sentence as aforesaid. SEC. 9. When any person shall be convicted of any crime punishable with death, and sentenced to suffer such punishment, he shall, at the same time, be sentenced to hard labor in the state prison until such punishment of death shall be inflicted. SEC. 10. And no person, so sentenced and imprisoned, shall be executed in pursuance of such sentence within one year from the day within one year, such sentence of death was passed, nor untill the whole record of the proceedings shall be certified by the clerk of the court in which the conviction was had, under the seal thereof, to the governor of this state, nor until a warrant shall be issued by the governor, under the great seal of the state, directed to the sheriff of the county in which the state prison may be situated, commanding the said sentence of death to be carried into execution. Punishment of ted by hanging. Sheriff, &c., to be tion-who else SEC. 11. The punishment of death shall, in every case, be inflictdeath to be infliced by hanging the convict by the neck until he is dead; and the sentence shall, at the time directed by the warrant, be executed within the walls of the state prison, or within the enclosed yard thereof. SEC. 12. The sheriff of the county shall be present at the place of present at execu- execution, unless prevented by sickness or other cuasualty, and also may be present. two of his deputies, designated by him; and he shall request the presence of the prosecuting attorney, and twelve respectable citizens, including a surgeon or physician, and shall permit the counsel of the prisoner, and such ministers of the gospel as the criminal shall desire, and his relations, to be present, and also such officers of the prison, deputies, constables and military guard as he may see fit, but no others. CHAPTER 169. execution. SEC. 13. Whenever a sheriff shall inflict the punishment of death TITLE XXXI. upon any convict, in obedience to a warrant from the governor, he shall make return thereof under his hand with his doings thereon, to Sheriff's return the office of [the] secretary of state, as soon as may be; and shall al- on warrant for so transmit to the clerk of the court in which the conviction was had, an attested copy of the warrant and return thereon; and the clerk shall place the same on file with the indictment, and subjoin to the record of the sentence, a brief abstract of the sheriff's return on the warrant. CHAPTER 169. OF THE FEES OF OFFICERS AND MINISTERS OF JUSTICE IN CRIMINAL CASES. in criminal cases SECTION 1. For the following services hereafter performed, in the Fees of officers cases authorized by law, the officers hereinafter named shall be allowed, respectively, the fees in this chapter directed. Justices of the Peace. peace. SEC. 2. For administering every oath, six cents; a warrant, nine- of justices of the teen cents; a bond or recognizance, twenty-five cents; a subpœna, six cents for each witness, not exceeding four in any one case; certifying the cause of commitment to other magistrates, or to any court, thirteen cents; a commitment for want of bail, nineteen cents; for any other services rendered by a justice in criminal proceedings, the same fees as for similar services rendered in civil proceedings. Constables. SEC. 3. Serving a warrant or other process for the arrest of any per- of constables. son, issued by any magistrate or court, fifty cents; and the same fees for traveling to make such service as are allowed in civil cases; taking a defendant into custody on a mittimus, thirteen cents; conveying a person to the magistrate or court before whom he is to be brought, thirteen cents if within one mile, and for every mile more, going only, six cents; serving a subpoena, thirteen cents for each witness, and the like mileage as above provided; but mileage shall be allowed only on the distance actually and necessarily traveled. sation may be allowed. The board of supervisors of each county may allow such further Further compen compensation for the service of process, and the expenses and trouble attending the same, as they shall deem reasonable; for other services in criminal cases, for which no compensation is specially provided by law, such sum as the board of supervisors shall allow. Clerks. SEC. 4. Swearing a witness, six cents; entering a recognizance, of clerks. thirteen cents; calling and swearing a jury, nineteen cents; for other services, the same as provided in civil cases. Sheriffs. SEC. 5. For every person committed to prison, thirty-eight cents; of sheriffs, CHAPTER 170. TITLE XXXI. for every person discharged from prison, thirty-eight cents; for serving a warrant or performing any other duty which may be performed by a constable, the same fees as are allowed by law to a constable for such service; for other services not herein specially provided for, such sums as may be allowed by the board of supervisors. Fees to be county charges. In respect to wit nesses. Clerk to issue order. County treasurer to pay. Penalty for taking unlawful fees. To be taxed for use of county; ting attorney. General Provisions. SEC. 6. The fees herein before in this chapter allowed for services, except those which are otherwise provided [for] by law, shall be county charges, and shall be audited by the board of supervisors of the county in which the services are rendered, and shall be paid in the same manner as other contingent charges of the county. SEC. 7. Whenever any person shall attend any court of record as a witness in behalf of the people of this state, upon request of the public prosecutor, or upon subpoena, or by virtue of a recognizance for that purpose, and it shall appear that such person has come from any other state or territory of the United States, or from any foreign country, or that such person is poor, the court may, by an order to be entered on its minutes, direct the county treasurer of the county in which the court may be sitting, to pay to such witness such sum of money as shall seem reasonable for his expenses; and no fees shall be allowed or paid to witnesses on the part of the people in any criminal proceeding or prosecution, except as in this section above provided. SEC. 8. The clerk of the court by which such order shall be made, shall immediately make out and deliver a certified copy thereof to the person in whose favor the same is made, without any fee for such service. SEC. 9. Upon the production of such certified copy to the county treasurer, or as soon thereafter as he shall have sufficient moneys in his hands, he shall pay to the person authorized to receive the same, or to his order, the sum of money so directed to be paid, which shall be allowed to the treasurer in his accounts. SEC. 10. The provisions of law prohibiting the taking of any fees for services in criminal (civil) cases, other than such as are allowed by law, shall apply to the taking of fees in criminal cases beyond the amount allowed by law for such services. SEC. 11. In all criminal prosecutions, where an indictment shall be found, and judgment for costs against the defendant shall be rendered, fees of prosecu- there shall be taxed for the use of the county, the following fees for the services of the prosecuting attorney, to wit: for drawing an indictment, two dollars; for trying the cause, four dollars; for arguing each motion in arrest of judgment, or for a new trial, two dollars; for services where exceptions are taken by the defendant, two dollars; for every discharge of the prosecution on the acknowledgment of satisfaction in such cases as are authorized by law, two dollars. CHAPTER 170. MISCELLANEOUS PROVISIONS CONCERNING PROCEEDINGS IN CRIMINAL CASES. SECTION 1. When complaint shall be made on oath to any magis. CHAPTER 170. trate authorized to issue warrants in criminal cases, that personal TITLE XXXI. property has been stolen or embezzled, or obtained by false tokens or pretences, and that the complainant believes that it is concealed in Search warrant any particular house or place, such magistrate, if he be satisfied that property stothere is reasonable cause for such belief, shall issue a warrant to search for such property. for len. SEC. 2. Any such magistrate may also, upon like complaint made For what search on oath, issue a search warrant, when satisfied that there is reasonable warrant may is. cause, in the following cases, to wit: 1. To search for and seize any counterfeit or spurious coin, forged bank notes, or other forged instruments, or any tools, machines, or materials, prepared or provided for making either of them: 2. To search for and seize any books, pamphlets, ballads, printed papers, or other things containing obscene language, or obscene prints, pictures, figures or descriptions, manifestly tending to corrupt the morals of youth, and intended to be sold, loaned, circulated or distributed, or to be introduced into any family, school or place of education : 3. To search for and seize lottery tickets, or materials for a lottery, unlawfully made, provided or procured for the purpose of drawing a lottery: 4. To search for and seize any gaming apparatus, or implements used, or kept and provided to be used in unlawful gaming, in any gaming house, or in any building, apartment, or place resorted to for the purpose of unlawful gaming. sue. SEC. 3. All search warrants shall be directed to the sheriff or any To whom direc constable of the county, commanding such officer to search, in the ted; execution day time, the house or place where the stolen property, or other things for which he is required to search, are believed to be conceal ed, which place, and the property or things to be searched for, shall be designated and described in the warrant, and to bring such pro perty or other things before the magistrate issuing the warrant. of. SEC. 4. If there be positive proof that any property, stolen or em- Search in night time when al bezzled, is concealed in any particular house or place, or that any lowed. such other things are then in any particular house or place, the war- used, &c. SEC. 5. When any officer in the execution of a search warrant, Property seized, shall find any stolen or embezzled property, or shall seize any of the how kept and other things for which a search warrant is allowed by the provisions of this chapter, all the property and things so seized shall be safely kept, by the direction of the court or magistrate, so long as shall be necessary for the purpose of being produced or used as evidence on any trial; and as soon as may be afterwards, all such stolen or embezzled property shall be restored to the owner thereof, and all the other things seized by virtue of any such warrant, shall be destroyed under the direction of the court or magistrate. SEC. 6. The governor of this state may, in any case authorized by Governor may the constitution and laws of the United States, appoint agents to de- appoint agents, mand of the executive authority of any other state or territory, or from the executive authority of any foreign government, any fugitive from justice, or any person charged with treason; and the accounts of the agents appointed for that purpose shall, in all cases, be audited by the anditor general, and paid out of the state treasury. SEC. 7. Whenever a demand shall be made upon the governor of Refugees in this state. |