Fifth. For books, pamphlets, or printed papers containing obscene language, prints, pictures or descriptions manifestly tending to corrupt the morals of youth, and for obscene, lewd or indecent or lascivious drawings, lithographs, engravings, pictures, daguerreotypes, photographs, steroscopic pictures, models or casts, whenever such articles are kept for distribution, sale or use, for hire or gain, and for instruments or articles of indecent or immoral use, or instruments, articles or medicines for producing abortion, or for the prevention of conception, or for selfpollution, or for any articles used for an obscene or unlawful purpose. [As amended, 1895 S., p. 364. In force March 11, 1895. 1620. Affidavit. 47. No warrant for search shall be issued until there is filed with the Justice an affidavit, particularly describing the house or place to be searched and the things to be searched for, and alleging substantially the offense in relation thereto; and that the affiant believes, and has good cause to believe, that such things as are to be searched for are there concealed. An affidavit for search, substantially in the following form, shall be deemed sufficient: A. B. swears [or affirms, as the case may be] that he believes, and has good cause to be lieve, that [here describe the things to be searched for], of the value of dollars, the property of [here describe the offense in relation thereto] are concealed in or about the [here describe the house or place] of C. D., situated in the township of — in said county. Subscribed and sworn to before me, this 18-. A. B. - day of JARED C. JOCELYN, Justice. [SEAL] 1621. Form of warrant. 48. A warrant for search substantially in the following form shall be deemed sufficient: To any Constable of said county, Greeting: Whereas, there has been filed with me an affidavit of which the following is a copy: [here copy the affidavit]: You are, therefore, commanded, in the name of the State of Indiana, with the necessary and proper assistance, in the day time or in the night time, to enter into [here describe the house or place as in the affidavit] and there diligently search for the said goods and chattels, to-wit: [here describe the articles as in the affidavit]; and that you bring the same, or any part thereof found on such search, forthwith before me at my office, to be disposed of according to law. Given under my hand this day of 18-. JARED C. JOCELYN, Justice. [SEAL.] 1622. Disposition of the property. 49. When the warrant is executed by the seizure of the property or things described therein, the property or things shall be safely delivered by the Justice to the Sheriff, to be safely kept by him, either within the county jail of his county or such other secure place as to him shall seem meet. And where the property found consists of obscene, lewd, indecent, or lascivious books, papers, articles and things, such Justice shall transmit, inclosed and under seal, specimens thereof to the Prosecuting Attorney, and the remainder thereof shall be deposited as aforesaid, inclosed and under seal. 1623. Sheriff's duty-Burglars' tools, etc. 50. Such property, so seized, shall be securely held by such Sheriff, subject to the order of the Court trying the offender; and upon the conviction of the person so offending, such Sheriff shall forthwith, in the presence of the person or persons upon whose complaint the seizure or arrest was made, if he or they shall after notice thereof elect to be present, destroy, or cause to be destroyed, the counter feit coins, dies, and instruments, gaming devices and apparatus, burglars' tools, and other articles used for unlawful purposes, and the obscene, lewd, and indecent articles and things above mentioned; and as to all other property, he shall, after such conviction, deliver the same, under the order of the Court trying the offender, to the proper owner thereof. 1624. Dead body. 51. When an affidavit is filed before a Justice of the Peace or the Mayor of a city, alleging that the affiant has good reason to believe, and does believe, that a dead human body, procured or obtained contrary to law, is secreted in a building, or other place, in the county, which is therein particularly specified, such Justice of the Peace, or Mayor of a city, taking with him a Constable or police officer, may enter, inspect, and search such building or other place for such dead body; and in making such search they shall have the powers of officers executing search [1881 S., p. 114. In force September 19, 1881.] 1625. Warrant, where served. 52. Any Justice, on complaint, made on oath before him, charging any person with the commission of any felony or misdemeanor, shall issue his warrant for the arrest of such person, and cause him to be brought, forthwith, before him for trial or exami nation; and such warrant may be served throughout the county. And if the accused flee from justice, or has already escaped from the county in which the offense was committed, the officer holding the warrant, upon having the certificate of the County Clerk attached thereto, setting forth that the Justice of the Peace signing the warrant was at the time duly commissioned and qualified as such, may pursue and arrest him in any county in this State; or the same may be served by any Constable or Sheriff in any county where he may be found. 1626. Affidavit. 53. An affidavit substantially in the following form shall be deemed sufficient: A. B. swears [or affirms, as the case may be] that on or about the 18-, at said county, C. D., as affiant verily believes [here state the offense]. Subscribed and sworn to before me, on this 18 day of A. B. day of 1627. Warrant. 54. A warrant substantially in the form following shall be deemed sufficient: STATE OF INDIANA, County of DIANA, ss: To any Constable of county: You are commanded to arrest C. D., and bring him, forthwith, before me, at my office, to answer the charge of having, at said county, on the day of ―, 18— [here state the offense], as A. B. has complained on oath; and have then and there this writ. Dated this day of, 18—. ABNER J. KIEL, Justice. [SEAL.] 1. If there be no crime charged, and the Justice issue a warrant under which an arrest is made, the Justice is liable for trespass. Not so, however, when a colorable charge is made which is merely defective.-State v. Gachenheimer, 30 Ind. 63. 1628. Proceedings after arrest. 55. When the officer holding the warrant arrests the accused, he shall take him before the Justice of the Peace; and it shall be the duty of such Justice to docket the cause as in civil cases, and to hear the cause, and either acquit, convict and punish, or hold to bail, the offender, or if the offense be not bailable, commit him to jail, as the facts and the law may justify. 1. If a felony be in fact committed by one, even a private citizen may arrest him without warrant. If there be a reasonable cause to believe him guilty of a felony, though none in fact has been committed, an officer may arrest. A peace officer may arrest for a misdemeanor, without warrant, only on view. - Per BUSKIRK, J., in Doering v. State, 49 Ind. 56. 2. A Justice has no authority to grant a new trial after taking recognizance.— Steel v. Williams, 13 Ind. 73. 1629. Counsel and Prosecutor. 56. It shall be the duty of such Justice to give the defendant an opportunity to employ counsel if he so desire; and the Justice shall also notify the Prosecuting Attorney or his deputy of the proceeding, if they or either of them are present within the township. 1630. Continuance-Recognizance — Witnesses. 57. When a continuance is had, the accused may, if the offense be a bailable one, enter into a recognizance before the Justice, with good and sufficient surety to be approved by him, in such amount as he may deem reasonable, conditioned for the appearance of the accused before such Justice, at a place, day, and hour in the recognizance specified; and he shall also recognize the witnesses in the same manner as prisoners are held to bail or witnesses recognized for their appearance at the Circuit or other Courts. 1631. Proceedings after forfeiture. 58. On the forfeiture of any recognizance taken by virtue of the last preceding section, the Justice shall indorse thereon his certificate, stating in substance that such prisoner did not appear in discharge of such recognizance and abide the judgment of the Court; and shall forthwith file such recognizance, so indorsed, with the Clerk of the Circuit or other proper Court. And such Clerk shall forthwith record, in the order-book of his Court, such recognizance and certificate of forfeiture, and note the same on the judgment-docket; and such record shall have the same force and effect as other recognizances; and such certificate, or the record thereof, shall be presumptive evidence of the forfeiture of such recognizance. 1632. Changes of venue. 59. Changes of venue shall be granted upon the application of the prisoner, as in civil cases, but the cost thereof shall abide the event of the prosecution, and in such case, the Justice granting the change shall fix the time of trial, before the Justice to whom he may send the cause, or the Justice may in like manner send the cause to the Mayor or Police Judge of any city, and the prisoner and witnesses shall be recognized to appear before the Justice, Mayor or Police Judge to whom the case is sent, in the same manner as provided in cases of continuance, and such recognizance, if forfeited, shall be certified by the Justice, Mayor or Police Judge, taking such forfeiture in the same manner as in cases of continuance and with like effect. [As amended, 1893 S., p. 144. In force Feb. 25, 1893. 1633. Special constables. 60. Special constables may be appointed. under like circumstances, and such appointment shall impose like liabilities, as in civil cases. 1634. How recognized, if felony. 61. When the offense charged is a felony, or a misdemeanor in which the lowest fine provided by law is larger than the justice shall have jurisdiction to assess, and the justice, upon the hearing, is of the opinion that the accused should be held to answer such charge, he shall be recognized to appear at the next term of the criminal court of such county, or if there be no criminal court, then to the circuit court of such county. [As amended, 1895 S., p. 365. In force March 11, 1895. 1635. Trial of misdemeanor. 62. If the offense charged be a misdemeanor, and one that the Justice of the Peace has jurisdiction to punish, the prisoner or the State may demand a jury, which may be impaneled and sworn as in other criminal cases; or he may be tried by the Justice, 1636. When punishment inadequate. 63. Such Justice or jury, if they find the prisoner guilty of a misdemeanor, shall assess his punishment; or if, in their opinion, the punishment they are authorized to assess is not adequate to the offense, they may so find, and, in such case, the Justice shall hold such prisoner to bail for his appearance before the proper Court, or commit him to jail in default of such bail. 1637. Jurisdiction. 64. The jurisdiction of Justices of the Peace in criminal cases shall be co-extensive with their respective counties, and they shall have exclusive original jurisdiction in all cases where the fine assessed can not exceed three dollars, and concurrent jurisdiction with the Criminal Court and Circuit Court to try and determine all cases of misdemeanor punishable by fine only; and in trials before Justices, fines to the extent of twenty-five dollars, with costs, may be assessed; and they shall have jurisdiction to make examination in all cases; but they shall have no power to adjudge imprisonment as a part of their sentence, except in the manner specially provided in this Act. 1638. Assault, battery, and affray. 65. Whenever an affidavit for assault, or assault and battery, is filed with a Justice, he shall cause the injured party to be subpoenaed as a witness; and such Justice shall not hear or determine such complaint unless the injured party be present as a witness at the trial, or, having been subpoenaed, refuses to attend, and can not be compelled to attend by attachment for any other cause than sickness or inability to attend by reason of the injuries he may have received from the defendant; or unless a subpoena, issued for the injured party, shall have been returned "not found" by the proper officer, after a diligent search for such witness in the proper county. And no trial shall be had upon a complaint for an affray, unless some person who saw the same shall be present as a witness, or, having been subpoenaed, refuses to attend. All judgments of such Justice in violation of the provisions of this section shall be void. 1639. Offense improperly charged. 66. Whenever upon the trial of any person for a misdemeanor before a Justice of the Peace, or while a preliminary examination is had before such Justice of any person upon a charge of felony or any other public offense, it appears to such Justice that a mistake has been made in charging the proper offense, or that he is guilty of an offense not charged, the Justice shall not discharge the defendant, if there appears to him to be good cause to detain him in custody; but he must cause an affidavit, charging the proper offense, to be made against the defendant, and recognize him to answer the same, and, if necessary, also recognize the witnesses to appear and testify. Where the proper charge is a felony, he shall also notify the Prosecuting Attorney or his deputy, if present in the county, to conduct such trial or examination. 1640. Crimes not punishable by city or town. 67. Whenever any act is made a public offense against the State by any statute and the punishment prescribed therefor, such act shall not be made punishable by any ordinance of any incorporated city or town; and any ordinance to such effect shall be null and void, and all prosecutions for any such public offense as may be within the jurisdiction of the authorities of such incorporated cities or towns, by and before such authorities, shall be had under the State law only. 1641. Offenses in view. 68. Where any offense is committed in view of any Justice, he may, by verbal direction to any Constable or, if no Constable be present, to any citizen, cause such Constable or citizen to arrest such offender and keep him in custody for the space of one hour, unless such offender shall sooner be taken from such custody by virtue of a warrant issued on complaint on oath. But such person so arrested shall not be confined in jail nor put upon trial until arrested by virtue of such war rant. 1642. Witnesses. 69. Whenever any Justice shall hold any prisoner to bail, or commit him to jail in default of bail, he shall also recognize, with or without surety in his discretion, such witnesses as he may deem important, to appear and testify before the Court where such cause is next to be heard. 1643. Appeal. 70. Any prisoner against whom any punishment is adjudged may appeal to the Criminal Court, and, if there be none, then to the Circuit Court of the county, within ten days after trial, on entering into recognizance for his appearance at the next term of such Court, as in other cases; and such appeal shall stay all proceedings. 1. If the recognizance be informal, taking the form of a bond with condition to prosecute the appeal to final judgment, and pay such judgment as may be rendered against him on such appeal, it is good; and it is error to dismiss the appeal.-Vierling v. State, 33 Ind. 218; Ott v. State, 35 id. 365. 1644. Form of recognizance. 71. Recognizances for the appearance of prisoners shall, in all cases, be taken with freehold surety, and shall be substantially in the following form: 18-. day of A. B. [SEAL.] We, A. B. and C. D., severally acknowledge ourselves bound to the State of Indiana in the sum of dollars each, if the said A. B. shall not appear at the first day of the next term of [here specify the Court] to answer a charge of [here state the offense], at the county of and State of Indiana, and abide the judgment of such Court. Witness our hands and seals this Attest: JARED C. JOCELYN, Justice. 1645. Recognizance and transcript. 72. Such recognizance, together with transcript of the proceedings and all papers in the case, shall be forthwith filed by the Justice with the Clerk of the proper Court, who shall docket such cause for trial and record such recognizance forthwith, and enter the same on the judgment-docket; and from the date of such entry it shall operate as a lien upon all lands in the county of the parties |