Privileges of 25. Any person who shall be indicted for any capital crime, shall b. Sec. 47. have a copy of the indictment, and a list of the jury which are to pass the accused. on his or her trial, delivered unto him or her, at least two entire days before he or she shall be tried for the same: (1) and every person accused and indicted, shall be allowed and admitted to make his full defence by counsel learned in the law. And the court before whom such person shall be tried, or some judge thereof, shall immediately upon his or her request, assign to such person, such counsel, not exceeding two, as such person shall desire, to whom such counsel shall have free access at all seasonable hours. And every such person or persons, so accused and indicted, shall be admitted in his, her, or their defence, to make any proof he, she, or they can produce by lawful witness or witnesses; and shall have the like process to compel his, her, or their witnesses to appear on his, her, or their trial, as is usually granted to compel witnesses to appear on the prosecution against him, her, or them. Sec. 2. fied by the a See § 25. § 26. So much of an act entitled "An act for the punishment of 1818-(4) crimes and misdemeanors,"a as requires that the prisoner should be Talesmen furnished with a list of the jury who are to pass on his trial, two en- not disquali tire days previous to such trial, shall be so construed, as not to dis- preceding qualify any person who may be summoned as a talisman, in case of section. a deficiency of jurors of the panel, with a copy of which such prisoner may have been served. $27. If any person, on his or her arraignment for any capital or 1807—(6) inferior offence, shall stand mute, or will not answer to the indict- Sec. 48. ment, the plea of not guilty shall be entered for him or her on the stands mute record, and the court shall, in either of the said cases, proceed to trial on arraign of the person standing mute, as if he or she had pleaded not guilty, court to enand, for trial, put him or herself upon the country; and render judgment accordingly. If defendant ment, the ter plea of not guilty. Sec. 8. county, and 28. When any person shall be feloniously stricken or poisoned 1807-(18) in one county, and shall die of the same stroke or poisoning in an- Poisoning, other county, then an indictment thereof found by jurors of the county &c. in one or district where the death shall happen, whether it be found before death in anothe coroner or justice upon the sight of such dead body, or before ther. court having authority to inquire of such offences, shall be as good and effectual in law, as if the stroke or poisoning had been committed and done in the same county where the party died, or where such indictment was found. any Poisoning, and death 29. When any person shall be feloniously stricken or poisoned b. Sec. 9. at any place out of this territory, and shall die of the same stroke or &c. in the poisoning within this territory; or when any person shall be feloni- territory, ously stricken or poisoned at any place within this territory, and shall out of it, and die of the same stroke or poisoning at any place out of this territory, vice versa. an indictment thereof found by the jurors of the county or district, in which such death, stroke, or poisoning, shall happen respectively as aforesaid, whether before the coroner or justice upon a view of the dead body, or before any court having authority to inquire of murders, shall be as good and effectual in law, against the principals and accessories, as if such felonious stroke and death, or poisoning and death, and the offence of such accessories, had happened in the same County where such indictment shall be found and the circuit or superior court holden in such county, shall and may proceed upon the (1) In computing the time of delivering the list of the jury, the day of delivery and day of trial must both be excluded. The State v M'Lendon. 1 Stewt. Rep. 195. Ib. Sec. 10. and keeping same in all points, as they might or ought to do, in case such stroke, poisoning, or death, had happened in the same county, where such indictment shall be found. § 30. Any person or persons who shall steal, or otherwise feloni. Stealing Prously take any horse, or other goods and chattels, from any person, the territory, in any place out of this territory, and shall afterwards have the same, possession of or any part of such goods and chattels, in his or their possession it within. within this territory, may be indicted for horse-stealing or other larceny, in whatever county he or they may be so found with such horse, or other goods and chattels as aforesaid; and any receiver of stolen property, knowing the same to have been stolen, may be in dicted in any county in which he shall have such stolen property in his possession, although the same may have been originally taken beyond the limits of this territory. Ib. Sec. 12. ished, al not convict ed. § 31. And whereas it sometimes happens that the buyers and restolen goods ceivers of stolen goods convey away and conceal the principal felon, may be pun- so that they cannot be convicted of such felony, and thereby such though prin- buyers and receivers escape all manner of punishment, which has cipal felon be greatly encouraged the buying and receiving of such stolen goods: Be it therefore enacted, That it shall and may be lawful to prosecute and punish every such person and persons, buying or receiving any stolen goods, knowing the same to be stolen, as for a misdemeanor, to be punished by fine and imprisonment, although the principal offender cannot be taken, or be not convicted of the said felony, which shall exempt the offender from being punished as accessory, if the principal shall be afterward convicted. Ib. Sec. 15. Legal error not to bar trial. Ib. Sec. 17. actions popu lar. § 32. No person accused of any criminal offence, shall be set at liberty and absolutely discharged before his trial, on account of any mere irregularity or informality in the warrant of commitment, nor after conviction, on account of any legal error or imperfection in his indictment; but the same proceedings shall be had again, as though he had never been arraigned: nor shall the words "force and arms,' or the words "against the peace,' " or the words "contrary to the form of the statute," be regarded as necessary in any indictment or information for any trespass, or any other offence whatsoever, nor shall the parties indicted have any advantage by writ of error, or plea, or otherwise, for the want of these or the like words; but such indictments and informations shall be judged as effectual to all intents and purposes, as indictments and informations having the same words in them. § 33. If any person hereafter sue with good faith any action popuCollusion in lar, and any defendant in the same action plead any manner of recovery by action popular, in bar of the said action, or that he before time barred any plaintiff in any action popular: then the plaintiff in the action taken with good faith, may aver that the said recovery was had by collusion, or that the said plaintiff was barred by collusion: and if such collusion be lawfully found, the plaintiff who shall sue with good faith, shall have recovery according to the nature of the action, and execution upon the same, in like manner and effect, as if no such action aforesaid had been had: Provided always, That no plaintiff shall be permitted to aver any collusion in any action popular, where the point of the same action, or else the collusion, has been once tried or lawfully found with the plaintiff or against him, by trial of twelve men, and not otherwise. 1 But, see Constitution of Alabama, Art. 5, Sec. 17. § 34. Hereafter it shall be lawful to try offenders, by indictment, 1820-(28) in all cases which are now required by law to be tried on present- Offenders to ment. Sec. 11. be tried on indictment. Grand jury presenting § 35. Hereafter, in all cases of misdemeanor, where the grand ju- 1827-(24) rors of this state are bound to present the offender or offenders, the Sec. 1. said grand jurors shall not be bound to make presentment of any of vested with a fender or offenders, on the knowledge of any one or more of their discretion in body only, unless twelve of the number of any grand jury shall agree for misdein opinion, that the public good requires that the offender or offenders should be prosecuted: Provided, That nothing herein shall prevent Proviso. any individual from prosecuting and preferring a bill before any grand jury, as now allowed by law, in which cases grand juries shall be governed in their finding by the facts of the case, as heretofore. meanors. § 36. It shall be the duty of the judges of the circuit courts through- b. Sec. 2. out the state to give this act in charge to the grand juries. 5. CHANGE of Venue. Judge to charge juries accordingly. Sec. 1. be allowed at §37. It shall be lawful for the judges of the circuit courts, respective- 1821—(35) ly, to grant to any person charged with a criminal offence, a change of Change of venue for sufficient cause shown at any time, either at the first trial venue may term, or if the case should be continued, or a new trial had after con- any time viction, at any subsequent term: Provided, That no change of venue shall be allowed more than once.1 before trial, or after new trial granted. 6. BAIL. Sec. 54. whom paya § 38. All recognizances hereafter taken for any breach of the peace, 1807-(6) for the prosecution of offenders against the laws, or in any case what- Recognisoever, where a recognizance may be necessary, shall be made paya- zances, to ble to the governor, for the time being, and his successors in office. ble. § 39. All persons shall be bailable, unless for capital offences, where 1807-(18) the proof shall be evident or the presumption great, by any justice of what of the peace, before whom the offender may be brought, before commitment, and by any one of the territorial judges afterward. Sec. 1. fences bailable, and by whom. 40. No defendant shall hereafter be bailed in a capital case, for a 1831—(2) failure of obtaining a jury for his or her trial. NOTE.-When defendant is entitled to be bailed for failure of trial,- 7. SCIRE FACIAS. Sec. 3. No bail for failure of ju ry. on forfeited $ 41. On bonds or recognizances forfeited, it shall be sufficient for 1833-(13) the clerk to issue a notice in the nature of a scire facias, reciting the What suffibond or recognizance, and state that the same is forfeited, and that cient sci. fa. unless he, she, or they appear at the next term of the court, and show bonds, &c. cause to the contrary, judgment will be entered against him, her or them; and where judgment nisi has been entered against any person, it shall be sufficient to recite the judgment nisi and the term of the On judg 1 In criminal prosecutions the right to a change of venue is confined to the party prosecuted, and shall be made to the nearest adjoining county which is free from the like exception.-See "Judicial Proceedings at Common Law-Venue,"-§ 149. ments nisi. Ib. Sec. 2. court at which it was rendered, and conclude by stating that unless he, she, or they appear at the next term of the court and show cause to the contrary, judgment final will be entered up; which notice shall be held sufficient in law to entitle the state to a recovery, though the citation be to no particular day of the term, and although the notice does not specify the day or before whom the judgment was rendered; nor shall any averment or statement be necessary to the validity of the notice aforesaid, beyond the express terms of this act. § 42. In setting out a copy of the bond or recognizance, or judg No variance ment nisi, a variance shall not vitiate the proceedings unless it be a substantial. substantial variance. fatal unless Ib. Sec. 3. § 43. Notices or scire facias shall be directed to the sheriff, and a serve notice, copy shall be served on each by the sheriff; and one service on each and one ser defendant in said notice or scire facias, shall be sufficient to enable vice suffi cient. Ib. Sec. 4. good, made either to the state or go vernor. Ib. Sec. 5. courts may the state to recover. § 44. All bonds or recognizances entered into as aforesaid, may be made payable to the state of Alabama: Provided always, That nothing in this section shall be so construed as to prevent the proper officer from making such bond payable to the governor and his suc cessors in office. § 45. The circuit courts are hereby authorized and required to determine upon all excuses in criminal cases for forfeitures under this act; and to excuse the party in default, on such terms as the court may impose, in no case extending beyond the payment of costs, where payment of the party is excused. cases of forfeiture, on costs only. 1807-(6) Sec. 49. 8. LIMITATION OF PROSECUTIONS. § 46. No person or persons shall be prosecuted, tried, or punished General li. for any offence, wilful murder, arson, forgery, counterfeiting, and lar mitation of ceny excepted, unless the indictment, presentment, or information for cept murder, the same, be found or exhibited within one year, next after the of arson, forge fence shall be done or committed. Nor shall any person be prosecu feiting, and ted for any fine or forfeiture under a penal statute, unless the prose one year, ex ry, counter larceny. 1822-(12) Sec. 1. Polygamy, subornation cution for the same shall be instituted within twelve months from the time of incurring the fine or forfeiture aforesaid: Provided, That nothing herein contained shall extend to any person or persons absconding or fleeing from justice. § 47. So much of the statute of limitations as prevents prosecutions for polygamy, perjury, and subornation of perjury, unless commenced perjury, and within a year after the time of the alleged offence, is hereby repealed. § 48. The prosecutions for the aforesaid offences, shall be com within five menced within five years, and not thereafter, after the commission of the alleged offence. of perjury, indictable years. Sec. 3. Assaults, § 49. No person or persons shall be indicted for any assault, or assault and battery, after the expiration of six months from the comand assaults mission of the offence, unless he, she, or they thus offending, shall have been recognized within that time to appear at some court having Cognizance of said offence, except always such person or persons may have fled from justice. and batte ries, within six months. 1831-(2) Sec. 1. 9. SELECTION OF THE JURY, AND CHALLENGES. as § 50. In the selection of a jury for the trial of a person charged with Juror's in- the commission of a capital crime, it shall be the duty of the court, competency ceived opi nion, how after the juror is sworn to make true answers to such questions as for preconmay be demanded of him by the court, to ask the juror if he has formed and expressed an opinion as to the guilt or innocence of the tested. prisoner at the bar. If the juror answers that he has formed and expressed an opinion, then the court shall demand of him, whether the opinion he has so formed and expressed, is formed upon his own knowledge of the facts, or upon rumor. If he answer that the opinion so formed and expressed, is formed upon his own knowledge of the facts, then he shall be rejected: but if he answer, that his opinion so formed and expressed, is formed upon rumor, then he shall be sworn in chief, unless challenged by the prisoner or prosecuting officer. 51. In all capital cases, the attorney for the state shall have the Ib. Sec. 2. right to four peremptory challenges of the jury. State's challenges in Ib. Sec. 4. 52. It shall not be lawful for any defendant, on trial for any offence capital cases. made capital by law, committed after the passage of this act, to chal- Defendant's lenge more than sixteen jurors, without showing good and lawful challenges cause for such challenge. in capital cases. In felonies § 53. In the trial of any person charged with any felonious offence Ib. Sec. 5. not capital, twelve peremptory challenges shall be allowed the prison- not capital, er, and four to the state. 10. COSTS AND RESTITUTION. defendant Lands or sons convict stitution. 54. The lands, tenements, goods and chattels, of any person or 1807—(6) persons convicted of any crime or misdemeanor, shall be liable and Sec. 51. subject in preference to all other demands whatever, (except dower goods of perand jointure) in the first place to the discharge of the expenses incur- ed. liable for red by the territory or county, in the prosecution and conviction of costs and resuch offender; and in the next place, to what restitution or reparation may be adjudged to the injured party; and if the estate of the person or persons shall be incompetent to the said purposes, then in that case, after deducting the expenses of prosecution and conviction as aforesaid, the surplus, if any, shall go towards making reparation to the party injured. In certain 55. It shall be the duty of the attorney general, to mark on all 1911–(8) bills of indictment the name of the prosecutor; and if the territory shall Sec. 1 fail in the prosecution, it shall be the duty of the court (either with cases, proseor without a motion to that effecta) if the prosecution appear frivolous or malicious, to order the prosecutor to pay costs. 11. TRIAL OF PERSONS OF COLOR. cutor to be taxed with the costs. [a 1826-(21) Sec. 2.] 56. No person having interest in a slave, shall sit upon the trial 1907—(6) of such slave. Sec. 58. missible. § 57. And for a declaration of what shall be deemed legal evidence . Sec. 59. in such cases, Be it further enacted, That the court may take for Evidence adevidence the confession of the offender, the oath of one or more credible witnesses, or such testimony of negroes or mulattoes, bond or free, with pregnant circumstances, as to them shall seem convincing. 58. Any slave may be tried for any offence not capital, by any 1914 (2) justice of the peace on warrant, and may be sentenced to receive any Sec. 1. number of stripes not exceeding one hundred, which sentence shall be tried by be executed by the constable: Provided however, That no slave justices of Slaves may the peace for offences not capital. |
