Verdict and judgment not to be affected by amendment of indictment. Record to be made after form of amended in. dictment. Civil remedy not barred. Biennial reports. for amendment shall be endorsed on the indictment: Provided, That when any such trial shall be had before another jury, the territory and the defendant shall respectively be entitled to the same challenges as they were respectively entitled to before the first jury was sworn. § 160. Every verdict and judgment which shall be given after the making of any amendment under the provisions of this code, shall be of the same force and effect in all respects as if the same indictment had originally been in the same form in which it was after such amendment was made. § 161. If it shall be necessary at any time, for any purpose whatever to draw up a formal record in any case when any amendment shall have been made under the provisions of this code, such record shall be drawn up in the form in which the indictment was after such amendment was made, without taking any notice of the fact of such amendment having been made. § 162. All exceptions which go merely to the form of an indictment, shall be made before trial, and no motion in arrest of judgment, or writ of error, shall be sustained for any matter not affecting the real merits of the offense charged in such indictment. No indictment shall be quashed for want of the words "with force and arms," or of the occupation or place of residence of the accused, nor by reason of the disqualification of any grand juror or grand jurors. § 163. Nothing in this chapter contained shall be so construed as to prevent the party or parties injured from having and maintaining a civil action for all damages and losses that he, she or they may have sustained, in consequence of the commission of any criminal offense herein punished; and no court shall allow or entertain the plea that the private injury is merged in the crime, or in any manner affected thereby: Provided, however, The record of conviction shall not be used as evidence in any civil action brought on any forged writing, or to recover the damages and losses sustained by the commission of any such criminal offense. § 164. It shall be, and is hereby declared to be, the duty of the judges of the supreme and district courts, to make a special report biennially, to the legislature, of all such defects, omissions or imperfections in this code, as experience may suggest. § 165. The manner of inflicting the punishment of death, Punishment by shall be by hanging the person convicted by the neck until death, at such time as the court shall direct, not less than fifteen nor more than sixty days from the time sentence is pronounced, unless, for good cause, the court or governor may prolong the time. body of crimi § 166. The court may order, on the application of any Dissection of respectable surgeon or surgeons, that the body of the con- nale. vict shall, after death, be delivered to such surgeon or surgeons for dissection. re § 167. This chapter shall extend to females committing Females any of the offenses made punishable by this chapter, sponsible. although they may not be expressly named. In all cases Confinement in where the punishment shall be by confinement in the peni- penitentiary. tentiary, the jury shall say in their verdict for what term the offender shall be confined; and the court, in pronouncing sentence, shall designate the portion of time such offender shall be confined to solitary imprisonment, and what portion to hard labor. Persons under the age of Persons under eighteen years shall not be punished by confinement in the eighteen. penitentiary for any offense, except robbery, burglary or arson; in all other cases, where a penitentiary punishment is or shall be provided, such person, under the age of eighteen years, shall be punished by imprisonment in the county jail, for any term not exceeding eighteen months, at the discretion of the court. § 168. All offenses herein defined shall be prosecuted and common law ofpunished as by this chapter is prescribed, and not other- fenses. wise; and all other offenses may be punished by fine and imprisonment, in the discretion of the court: Provided, The fine shall in no case exceed one hundred dollars, and the imprisonment six months. § 169. Whenever the punishment for any crime or misde- Duty of court. meanor is discretionary as to the extent or amount thereof, the court shall determine and affix the same, whether the punishment consist of corporeal punishment, imprisonment or fine. treasury. § 170. All fines imposed by virtue of any of the laws of Fines to be paid this territory, for the punishment of crimes and misde- into county meanors, shall, when collected, be paid into the treasury of the county where the offense shall be tried, for the use of such county, unless otherwise especially directed: Provided, however, That nothing in this section contained shall be so construed as to found or constitute a cause of challenge or objection to any grand or petit juror. § 171. The benefit of clergy, appeals of felony and trials Benefit of clergy by battle, shall be, and are hereby forever abolished. appeals of felony and trials by battle abol ished. Order of commitment until § 172. The court shall have power, in all cases of conviction under this chapter, when any fine is inflicted, to order, as part of the judgment of the court, that the offendor shall be committed to jail, there to remain until the fine fine and costs and costs are fully paid or otherwise legally discharged. are paid. § 173. Each and every person who may hereafter be con- Infamous crimes victed of the crime of rape, kidnapping, willful and corrupt perjury or subornation of perjury, arson, burglary, robbery, sodomy, or the crime against nature, incest, larceny, for Bail. iff. Recognizance of gery, counterfeiting, or bigamy, shall be deemed infamous, and shall forever thereafter, be rendered incapable of holding any office of honor, trust or profit, of voting at any election, and of serving as a juror. OF PROCESS, INDICTMENT, ARRAIGNMENT, TRIAL, JUDGMENT, EXECU- § 174. It shall be the duty of the district court, when any Duty of court, indictment shall be found as a true bill, to make an order, clerk and sher- fixing the amount of bail to each offense bailable by law, to be indorsed on the process by the clerk; and the sheriff, coroner or other officer who shall arrest the indicted person or persons, shall let such indicted person or persons to bail upon his, her or their entering into a recognizance, with one or more securities, in the sum or sums specified on said process, which recognizance shall be made to the Territory of Nebraska, conditioned for the appearance of the indicted person or persons, on the first day of the next district court to be holden in and for said county, to answer the said indictment, and not depart the court without leave, which recognizance shall be signed by the persons entering into the same, and certified by the officer taking it. Every recognizance so taken is hereby declared to be valid and binding, and shall not be set aside or adjudged insufficient for want of form. bail. Capias. § 175. It shall be the duty of the clerks of the district courts of each county of this territory, to issue process of capias for the apprehension of all persons indicted in said courts respectively, to be directed to the sheriff, coroner and constable of the county where such indicted person or persons shall then be; and it shall be the duty of the sheriff, or, in case of his absence or inability, of the coroner or some one of the constables of the county to which said capias is directed, to arrest the person or persons therein named, and to let him or them to bail where the offense is bailable; or if the offense be not bailable, or not sufficient bail be offered, then the officer making the arrest shall bring his, her or their bodies, to the jail of the county where said capias is returnable, and deliver such accused person or persons, together with the capias, to the keeper of the jail, there to remain until discharged by due course of law. It shall also be the duty of any officer who shall take any recognizance in pursuance of this section, to return the same to the clerk by the first day of the court to which it may be returnable. It shall be lawful for any officer who has the custody of any prisoner or prisoners, by virtue of this section, to pass through any counties which lie in his route between the place of arrest and the county to which he is taking such prisoner or prisoners, and to lodge or deposit said prisoner or prisoners in any jail on his route, for safe custody, for one night or more, as occasion may require; and it is hereby made the duty of the county commissioners' court of the county where such indictment shall be found, to pay to the officer who shall bring any offender or offenders from another county, his reasonable charges for such service: Provided, That nothing contained in this or the preceding section, shall prevent a capias from being issued without such indorsement, returnable instanter, which capias shall authorize and require the accused to be arrested and immediately brought into court, when he or she shall be either committed, bailed or tried at the term at which the indictment shall be found. § 176. It shall be the duty of the clerks of the district Subpoenas. courts to issue subpoenas, either on the part of the territory or of the accused. in any indictment, directed, as in the preceding section, to any county in this territory. And Contempts. every witness who shall be duly subponed, and shall neglect or refuse to attend any district court, pursuant to the requisitions of such subpoena, shall be proceeded against and punished for contempt of the court. And attachments Attachment. against witnesses who live in a different county from that where such subpoena is returnable, may be served in the same manner as capiases are directed to be served, out of the county from which they issue in the preceding section. § 177. It shall not be necessary to issue a venire in any venire. criminal case. And in all criminal cases where the panel of jurors shall be exhausted, by challenges or otherwise, and whether any juror has been elected and sworn or not, it shall be competent for the court to order on their minutes a tales for any number of jurors, not exceeding Tales. twenty-four, returnable instanter, out of which persons so ordered to be summoned, it shall be lawful to impannel a jury for the trial of any criminal case; but should the tales ordered be insufficient, by reason of challenges or otherwise, to form an impartial jury, the court may, from time to time, make such further orders on their minutes for additional tales men, returnable instanter, until a full jury shall be obtained. dorsed on indict cases. § 178. No bill of indictment for false imprisonment, or Prosecutor's willful and malicious mischief, shall be found a "true bill" naine to be inby any grand jury, unless a prosecutor is indorsed thereon ment in certain by the foreman of the grand jury, with the consent of the prosecutor, except the same shall be found upon the information and knowledge of two or more of the grand jury, or upon the information of some public officer in the necessary discharge of his duty, in which case it shall be stated, at the end of the indictment, how the same is found, and then no prosecutor shall be required; but in cases where a prosecutor is indorsed on the indictment, and the defendant shall be acquitted on trial, the petit jury acquitting each Copy of indict jurors and wit defendant shall find, in addition to the verdict of "not guilty," whether the prosecutor had acted maliciously by instituting the prosecution or not; and whenever the petit jury shall return with a verdict of "not guilty," that the prosecutor had acted maliciously in the premises, the court shall enter judgment for costs against the prosecutor, including a fee of three dollars to the district attorney, and award execution for the same, as is done in civil cases: Provided, That nothing herein contained shall render the prosecutor incompetent to be a witness, either before a grand or petit jury. § 179. Every person charged with treason, murder or ment and list of other felonious crime or misdemeanor, shall be furnished previous to his trial, with a copy of the indictment, and a list of the witnesses, at his or her request, or the request of his or her counsel. nesses. Arraignment. Plea. Standing mute. Plea of guilty. 1 Challenge of jurors. § 180. Upon the arraignment of a prisoner, it shall be sufficient, without complying with any other form, to declare, orally, by himself or herself, or his or her counsel, that he or she is not guilty; which declaration or plea shall be immediately entered upon the minutes of the court by the clerk, and the mention of the arraignment and such plea shall constitute the issue between the Territory of Nebraska and the prisoner; and if the clerk should neglect to insert in the minutes the arraignment and plea, it may and shall be done at any time by order of the court, and then the error or defect shall be cured. § 181. In all cases where the party indicted shall, on being arraigned, obstinately stand mute, or refuse to plead, standing mute or refusing to plead, shall be adjudged and taken to be a denial of the facts charged in the indictment, and the court shall order the plea of "not guilty" to be entered on the minutes, and the trial, judgment and execution, shall proceed in the same manner as it would have done if the party had pleaded "not guilty." § 182. In all cases where the party indicted shall plead 'guilty," such plea shall not be entered until the court shall have fully explained to the accused the consequences of entering such plea; after which, if the party indicted persist in pleading "guilty," such plea shall be received and recorded, and the court shall proceed to render judgment and execution thereon, as if he or she had been found guilty by a jury. In all cases where the court possess any discretion as to the extent of the punishment, it shall be the duty of the court to examine witnesses as to the aggravation and mitigation of the offense. § 183. Every person arraigned for any crime, punishable with death, shall be admitted, on his trial, to a peremptory challenge of sixteen jurors, and no more; and every person arraigned for any offense that may be punished by imprison |