TO REGULATE THE PRACTICE AND PROCEDURE IN CRIMINAL CASES

 

1.—OF THE TIME FOR PRESENTING INDICTMENTS

 

Section 1.  In all cases of offenses against the laws of this Kingdom, triable only by a court of record, the accused shall be arraigned and prosecuted by an indictment by a legal prosecutor of the Crown, as soon after the commitment of the offense of which he is accused as may be expedient; provided, always, that the presentation of an indictment against an accused shall not be deferred beyond the term of the court having jurisdiction of the alleged offense next succeeding the commitment of the accused for trial by a magistrate having competent jurisdiction therefore.  And the trial shall then and there be proceeded with, unless the same shall be postponed by the court as hereinafter provided.

 

Section 2.  The necessary bills of indictment shall be duly prepared by a legal prosecuting officer, and be duly presented to the presiding judge of the court before the arraignment of the accused, and such judge shall, after examination, certify upon each bil of indictment whether he finds the same a true bill or not.

 

Section 3.  The failure to prosecute upon the indictment if found at the ensuing term of the court, unless the venue be changed, or unless the cause be postponed by the court, or a failure to sustain the indictment upon the law involved, or a verdict of not guilty by the jury, or the successive disagreement of two juries impaneled to try the cause, shall operate as an acquittal of the accused, and the court shall order his discharge from custody.

 

Section 4.  The Attorney-General or the sheriffs on the several circuits shall furnish to the clerk of the court, three days before the first day of the term, a list of all criminal cases triable by jury at such term, that the calendar may be made up.

 

II.—DISCHARGE WITHOUT PROSECUTION

 

Section 5.  It shall be lawful for the Attorney-General, in respect of any person or persons now or hereafter imprisoned under committal for trial for any offense, to grant at any time a certificate under his hand in the form following:

 

To the Judges of the Supreme Court of the Hawaiian Kingdom or any one of them.

This is to certify that I decline to present an indictment against A.B. detained in the custody of the marshal in the gaol at ____________________ under the warrant of C.D., Esq., police or district judge of _____________________ upon a charge of ________________.

Given under my hand this ___ day of _______ 18___.

E.F. , Attorney-General.

Addressed to the judges of the Supreme Court or any one of them, who shall thereupon by warrant under their or his hand in the form following:

To _____________ Esq.

Marshal of the Hawaiian Kingdom.

 

Whereas, A.B. is detained in your custody under the warrant of C.D., Esq., police or district judge of ________________ upon a charge of _____________________ and whereas it has been certified to us (or me) by His Excellency E.F., the Attorney-General of the Kingdom, that he declines to present any indictment against the said A.B., for the said offense; you are therefore hereby authorized and required forthwith to discharge the said A.B., from your custody upon the said warrant.

Given under our (or my) hand this ___ day of _______ 18___.

G.H.  or I.K.} Judges (or Judge) of the Supreme Court

 

Order and direct the marshal or gaoler in whose custody any such prisoner shall be, immediately to discharge the prisoner therein mentioned from imprisonment, in respect of the offense mentioned in said warrant.

 

III.—VENUE, &C.

 

Section 6.  The offense of any person who shall be an accessory either before or after the fact to any felony may be dealt with, enquired of, tried, determined and punished by any court which shall have jurisdiction to try the principal felony or any felonies committed in any place, in which the act by reason whereof such person shall have become such accessory shall have been committed.

 

Section 7.  The offense of polygamy may be dealt with, enquired of, tried, determined and punished in any jurisdiction within which the offender shall be apprehended or be in custody, in the same manner in all respects as if the offense had been actually committed within that jurisdiction.

 

Section 8.  Whosoever shall receive any chattel, money, valuable security, or other property whatsoever, knowing the same to have been feloniously or unlawfully stolen, taken, obtained, converted, or disposed of, may (whether charged as an accessory after the fact of the felony, or with a substantive felony, or with a misdemeanor only) be dealt with, indicted, tried and punished in any jurisdiction in which he shall have or shall have had any such property in his possession, or in any jurisdiction in which the party guilty of the principal offense may by law be tried, in the same manner as such receiver may be dealt with, indicted against, tried and punished in the jurisdiction where he actually received such property.

 

Section 9.  Whosoever shall steal any part of any ship which shall be in distress, or shall commit any other of the offenses enumerated in the Section 6 of Chapter XXIII. of the Penal Code, may be indicted and tried before any court of record.

 

Section 10.  Whosoever shall commit any offense of forging or altering any matter whatsoever, or of offering, passing, negotiating, assigning or transferring any matter whatsoever, knowing the same to be forged or altered, may be dealt with, indicted, tried and punished in any jurisdiction in which he shall be apprehended, or be in custody in the same manner in all respects as if his offense had been actually committed in that jurisdiction.  And every accessory before or after the fact to any such offense, may be dealt with, indicted, tried and punished in any jurisdiction in which he shall be apprehended, or be in custody, in the same manner in all respects as if his offense, and the offense of his principal, had been actually committed in such jurisdiction.

 

Section 11.  Where any person shall tender, utter, or put off any false or counterfeit coin in one jurisdiction, and shall also tender, utter or put off any other false or counterfeit coin in any other jurisdiction, either on the day of such first mentioned tendering, uttering or putting off or within the space of ten days next ensuing, or where two or more persons acting in concert in different jurisdictions shall commit any offense against Chapter XXXI. of the Penal Code, every such offender may be dealt with, indicted, tried and punished, and the offense laid and charged to have been committed in any one of the said jurisdictions in the same manner in all respects as if the offense had been actually and wholly committed within one such jurisdiction.

 

Section 12.  It shall not be necessary to state any venue in the body of any indictment, but the jurisdiction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of such indictment; provided, that in case where local description is or hereafter shall be required, such local description shall be given in the body of the indictment.

 

Section 13.  It shall be lawful for any court of record or judge thereof, at any stage of any criminal proceedings depending therein, whether the venue be by law local or not, to order that the venue be changed, and to direct that the trial be had in Honolulu or in some particular judicial circuit; in such cases and for such reasons as the justice of the case may require, and subject to such conditions as the court or judge may, in its or his discretion, impose.

 

IV.—JOINDER OF DEFENDANTS I CERTAIN CASES.

 

Section 14.  Any number of accessories, at different times to any felony, and any number of receivers, at different times, of the whole or any part or parts of any property which shall at one time have been stolen, taken, extorted, obtained, embezzled, or otherwise disposed of in such a manner as to amount to a felony, may be charged with substantive felonies in the same indictment and may be tried together, notwithstanding the principal felon shall not be included in the same indictment, or shall not be in custody, or amenable to justice.

 

V.—WHAT INDICTMENTS SHALL SUFFICE AND AVAIL.

 

Section 15.  No indictment for any offense shall be held insufficient for want of the averment of any matter unnecessary to be proved, nor for the omission of the words “as appears upon the record,” or “as appears by the record,” or of the words “with force and arms,” or of the words “against the peace,” or for the insertion of the words “against the form of the statute,” instead of the words “against the form of the statute,” or vice versa, or for that any person mentioned in the indictment is designated by a name of office or other descriptive appellation, instead of his proper name, or for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, or for stating the time imperfectly, or for stating the offense to have been committed on a day subsequent to the finding of the indictment or on an impossible day, or on a day that never happened, for want of a proper or perfect venue, or for want of a proper or formal conclusion, or for want of or imperfection in the value or price of any matter or thing, or the amount of damage, or injury in any case where the value or price, or the amount of damage, or injury, is not of the essence of the offense.

 

Section 16.  In any indictment for any felony or misdemeanor, wherein it shall be requisite to state the ownership of any property whatsoever, whether real or personal, which shall belong to or be in the possession of more than one person, whether such persons be partners in trade, joint tenants, partners or tenants in common, it shall be sufficient to name one of such persons and to state such property to belong to the person so named, and another or others, as the case may be; and whenever in any indictment for any purpose whatsoever any partners, joint tenants, partners or tenants in common, it shall be sufficient to describe them in the manner aforesaid; and this provision shall be construed to extend to all joint stock companies and trustee.

 

Section 17.  All property, real and personal, whereof any body corporate shall by law have the management, control or custody, shall, for the purpose of any indictment or proceeding against any other person for any offense committed on or in respect thereof, be deemed to be the property of such body corporate.

 

Section 18.  In any indictment for murder or manslaughter or for being an accessory to any murder or manslaughter, it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in any indictment for murder to charge that the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased; and it shall be sufficient in any indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased; and it shall be sufficient in any indictment against any accessory to any murder or manslaughter, to charge the principal with the murder or manslaughter (as the case may be) in the manner hereinbefore specified, and then to charge the defendant as an accessory in the manner heretofore used and accustomed.

 

Section 19. In any indictment for forging, altering, uttering or offering any instrument whatsoever, or for passing, negotiating, assigning or transferring, obtaining or attempting to obtain any property by false pretences, or for any offense against Chapter XXIII of the Penal Code, it shall be sufficient where it shall be necessary to allege an intent to defraud or injure to allege that the defendant did the act with intent to defraud or injure any particular person, and in the case of obtaining or attempting to obtain property by false pretences without alleging any ownership of the money or other thing of value.  And on the trial of any of the offenses in this section mentioned, it shall not be necessary to prove an intent on the part of the defendant to defraud or injure any particular person, but it shall be sufficient to prove that the defendant did the act charged with an intent to defraud or injure (as the case may be).

 

Section 20.  In any indictment for any offense committed after a previous conviction or convictions for any felony or misdemeanor, it shall be sufficient after charging the subsequent offense to state that the offender was at a certain time and place, or at certain times and places, convicted of felony or misdemeanor, and to state the substance and effect only, omitting the formal part of the indictment and conviction for the previous offense without otherwise describing the previous offense or offenses.

 

Section 21.  In every indictment whatsoever in which it shall be necessary to make any averment as to any money or valuable security, and in every indictment for embezzlement, fraudulent application or fraudulent disposition where the offense shall relate to any valuable security, it shall be sufficient to describe such money or valuable security, although the particular species of coin of which said amount was composed or the particular nature of the valuable security shall not be proved, and in the cases of the offenses so specially named and also in the case of obtaining money or other property by false pretenses, by proof that the offender embezzled, fraudently applied or disposed of any amount or obtained any piece of coin or any valuable security or any portion of the value thereof respectively, although such piece of coin or valuable security (as the case may be) may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same or to any other person, and such part shall have been returned accordingly.

 

Section 22.  It shall be lawful to insert several counts in the same indictment against the same person for any number of distinct acts of stealing, not exceeding three, which may have been committed by him against the same person within the space of six months from the first to the last of such acts, and to prosecute thereon for all or any of them.

 

Section 23.  If any indictment for stealing or for any fraudulent purpose, destroying, canceling, obliterating or concealing the whole or any part of any document of title to lands, it shall be sufficient to allege such document to be or to contain evidence of the title or of part of the title of the person or of some one of the persons having an interest whether vested or contingent, legal or equitable, in the real estate to which the same relates, and to mention such real estate or some part thereof.

 

Section 24.  In any indictment for any of the following offenses it shall not be necessary to allege that the instrument, document, article or thing in respect of which the offense is committed is the property of any person (that is to say), the offense of stealing any testamentary instrument; the offense of stealing any original document of any court; the offense of stealing or of ripping, cutting, severing or breaking with intent to steal anything made of metal fixed in any square or street, or in any place dedicated to public use or ornament.

 

Section 25.  For preventing difficulties in the prosecution of offenders in any case of embezzlement or fraudulent application or disposition by any person, it shall be lawful to charge in the indictment and proceed against the offender for any number of distinct acts of embezzlement, or of fraudulent application or disposition, not exceeding three, which may have been committed by him against the same person within the space of six months from the first to the last of such acts.

 

Section 26.  In every case of larceny committed against His Majesty, or embezzlement, fraudulent application or disposition committed against His Majesty, of any chattel, money, or valuable security, it shall be lawful in the order of committal by the justice before whom the offender shall be charged, and in the indictment to be preferred against the offender, to la the property of such chattel, money, or valuable security as aforesaid in His Majesty.

 

Section 27.  In every case of stealing any chattel let to be used in or with any house or lodging, it shall be lawful to prefer an indictment in the common form as for larceny, and in every case of stealing any fixture so let as aforesaid to prefer an indictment in the same form as if the offender were not a tenant or lodger, and in either case to lay the property in the owner or person letting to hire.

 

Section 28.  In any indictment containing a charge of feloniously stealing any property it shall be lawful to add a count or several counts for feloniously receiving the same or any part of parts thereof, knowing the same to have been stolen, and in any indictment for feloniously receiving any property knowing it to have been stolen, it shall be lawful to add a count for feloniously stealing the same.

 

Section 29.  In any indictment for forging, altering, offering, uttering, disposing of, or for stealing, embezzling, extorting, converting, disposing of, destroying or concealing, or for obtaining by false pretences any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known or by the purport thereof, without setting out any copy or facsimile thereof or otherwise describing the same or the value thereof.

 

Section 30.  In all other cases whenever it shall be necessary to make any averment in any indictment as to any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or facsimile of the whole or any part thereof.

 

Section 31.  In any indictment for perjury or unlawfully, willfully, falsely, fraudulently, deceitfully, maliciously or corruptly, taking, making, signing or subscribing any oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate or other writing, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and by what court or before whom the oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate or other writing was taken, made, signed or subscribed, without setting forth the bill, answer, affirmation, information, declaration, or any part of any proceeding, either in law or in equity or other jurisdiction, and without setting forth the commission or authority of the court or the person before whom such offense was committed.

 

Section 32.  In every indictment for subornation of perjury or of corrupt bargaining or contracting with any person to commit willful and corrupt perjury, or for inciting, causing or procuring any person unlawfully, willfully, falsely, fraudulently, deceitfully, maliciously, corruptly, to take, make, sign or subscribe any oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate, or other writing, it shall be sufficient wherever such perjury or other offense aforesaid shall have been actually committed, it shall be sufficient to set forth the substance of the offense charged upon the defendant without setting forth or averring any of the matters or things hereinbefore rendered unnecessary to be set forth or averred in the case of willful and corrupt perjury.

 

VI.—OBJECTIONS TO INDICTMENTS, HOW TAKEN, POWER OF AMENDMENT.

 

Section 33.  Every objection to any indictment for any defect apparent on the face thereof, shall be taken by demurrer or motion to quash such indictment before the accused has pleaded and not afterwards; and every court before which any such objection shall be taken for any such defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared; and no motion in arrest of judgment shall be allowed for any defect in any indictment which might have been taken advantage of by demurrer or motion to quash as aforesaid.

 

VII.—POSTPONEMENT OF TRIAL, &C

 

Section 34.  No person prosecuted shall be entitled as of right to traverse or postpone the trial of any indictment preferred against him, or to have time to please or demur to any such indictment allowed him.  Provided always, that if the court before which any person is indicted shall, upon the application of such person or otherwise be of opinion that he ought to be allowed a further time to plead, or demur, or to prepare for his defense, or otherwise, such court may grant such further time to plead, or demur, or may adjourn the receiving or taking of the plea, or demurrer, and the trial (or as the case may be) of such person to the next or any subsequent term of the court, and upon such terms as to bail or otherwise as to the court shall seem meet.

 

VIII.––COURT FEES NOT PAYABLE BY DEFENDANTS

 

Section 35.  It shall not be lawful to take, demand, or receive any court fees for the issuing of any process for or on behalf of any person charged with, or indicted for, any felony or as accessory thereto, or with or for any misdemeanor in any court of criminal jurisdiction; nor shall it be lawful to take, demand or receive any fees from any such person for taking any recognizance of bail, or issuing any writ of habeas corpus, or recording any appearance, or plea to any information, or for discharging any recognizance taken from any such person, or surety or sureties for them, but all costs may be ordered to be paid by the person charged and convicted as part of the judgment.

 

IX.––ARRAIGNMENT, PLEA, &C.

 

Section 36.  If any person being arraigned upon any indictment for any offense shall plead thereto a plea of “not guilty,” he shall by such plea without any further form, be deemed to have put himself upon the country for trial, and the court shall in the usual manner order a jury for the trial of such person accordingly.

 

Section 37.  If any person being arraigned upon or charged with any offense, shall stand mute of malice, or will not answer directly to the indictment in every such case; it shall be lawful for the court (if it shall so think fit) to order the proper officer to enter a plea of “not guilty” on behalf of such person, and the plea so entered shall have the same force and effect as if such person pleaded the same.

 

Section 38.  If any person indicted for any offense shall be insane, and shall upon arraignment be found so to be by a jury lawfully impanneled for that purpose, so that such person cannot be tried upon such indictment, or if upon the trial of any person so indicted such person shall appear to the jury charged with such indictment to be insane, it shall be lawful for the court before whom any such person shall be brought to be arraigned or tried as aforesaid, to direct such finding to be recorded, and thereupon to order such person to be kept in strict custody until His Majesty’s pleasure shall be known; and if any person charged with any offense shall be brought before any court to be discharged for want of prosecution, and such person shall appear to be insane, it shall be lawful for such court to order a jury to be impanneled to try the sanity of such person; and if the jury so impanneled shall find such person to be insane, it shall be lawful for the court to order such person to be kept in strict custody in such place and in such manner as to such court shall seem fit, until His Majesty’s pleasure shall be known; and in all cases of insanity so found, it shall be lawful for His Majesty by and with the advice of his Cabinet to give such order for the safe custody of such person so found to be insane during His Majesty’s pleasure, in such place and in such manner as to him by and with such advise as aforesaid shall seem fit.

 

Section 39.  No indictment shall be abated by reason of any dilatory plea of misnomer or of want of addition, or of wrong addition of the party offering such plea, if the court shall be satisfied by affidavit or otherwise of the truth of such plea, but in such case the court shall forthwith cause the indictment to be amended according to the truth, and shall call upon such party to plead thereto and shall proceed as if no such dilatory plea had been pleaded.

 

Section 40.  In any plea of autrefois convict or autrefois acquit, it shall be sufficient for the defendant to state that he has been lawfully convicted or acquitted (as the case may be) of the said offense charged in the indictment.

 

Section 41.  The proceedings upon any indictment for committing any offense after a previous conviction or convictions shall be as follows (that is to say):  the offender shall in the first instance be arraigned upon so much only of the indictment as charges the subsequent offense; and if he plead not guilty, or if the court order a plea of not guilty to be entered on his behalf, the jury shall be charged in the first instance to enquire concerning such subsequent offense only;  and if they find him guilty or if on arraignment he plead guilty, he shall then and not before be asked whether he had been previously convicted as alleged in the indictment, and if he answer that he had been so previously convicted, the court may proceed to sentence him accordingly; but if he deny that he had been so previously convicted or stand mute of malice, or will not answer directly to such question, the jury so in the first instance charged as aforesaid, or (if by reason of a plea of guilty in the first instance no such jury has been so charged) then a jury in like manner as in other cases shall be charged to enquire concerning such previous conviction or convictions; and in the case of a jury so charged in the first instance, it shall not be necessary to swear the jury again, but the oath already taken by them shall for all purposes be deemed to extend to such last mentioned enquiry.  Provided, that if upon the trial of any person for any such subsequent offense such person shall give evidence of his good character, it shall be lawful for the prosecutor in answer thereto to give evidence of the conviction of such person for the previous offense or offenses before such verdict of guilty shall be returned; and the jury shall enquire concerning such previous conviction or convictions at the same time that they enquire concerning such subsequent offense.

 

Section 42.  Any person indicted for a crime punishable with death shall, on demand upon the clerk by himself or his counsel, have a list of the jurors returned delivered to him, and shall also have process to summon such witnesses as are necessary for his defense.

 

Section 43.  In all cases of felony in which the party accused is unable to employ counsel for his defense, the court may assign him counsel from among the licensed practitioners, who shall use every lawful exertion in his behalf without fee or reward, upon pain of contempt to the court.

 

Section 44.  Every native Hawaiian arraigned upon indictment for any offense shall, on demand upon the Attorney General, be furnished with a copy of the indictment in the Hawaiian language.

 

Section 45.  The prosecuting attorney shall open the case, and first introduce his witnesses and proofs, and after the evidence for the defense has been presented, and the accused or his counsel has summed up and closed his case, the prosecuting attorney shall have the right to sum up the entire evidence and close the debate.

 

X.—DEFENSE.

 

Section 46.  All persons tried for any offense shall be admitted after the close of the case for the prosecution to make full answer and defense thereto by counsel or attorney.

 

XI.—VARIANCES AND AMENDMENT.

 

Section 47.  If on the trial of any indictment there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof, it shall and may be lawful for the court before which the trial shall be had, if such court shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on such merits, to order such indictment to be amended according to the proof in such part of the indictment and in such manner as such court shall think fit, on such terms as to postponing the trial to be had before the same or another jury as such court shall think reasonable; and after any such amendment the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects and with the same consequences, both with respect to the liability of witnesses to be informed against for perjury and otherwise, as if no variance had occurred; and in all such cases where the trial shall be so postponed, it shall be lawful for the court to discharge the jury sworn from giving any verdict, and to cause to be endorsed on the indictment the words “jury discharged from giving a verdict.”  Provided, that in all such cases where the trial shall be so postponed as aforesaid, it shall be lawful for such court to enlarge the bail of the defendant and the surety or sureties (if any) accordingly; in such cases the witnesses who may have been summoned to give evidence, shall be bound to attend to give evidence respectively, and the defendant shall be found to attend to be tried at the time and place to which said trial shall be postponed without entering into any fresh bail bond, or being served with fresh process for that purpose, in such and the same manner as if the defendant originally bound and the witnesses summoned to appear and give evidence at the time and place to which such trial shall have been postponed.  Provided also, that where any such trial shall be to be had before another jury, the Crown and the defendant shall respectively be entitled to the same challenges as they were respectively entitled to before the fist jury was impanneled.

 

XII.—VERDICT.

 

Section 48.  In cases where it shall be given in evidence upon the trial of any person charged with any offense, that such person was insane at the time of the commission of such offense, and such person shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the commission of such offense, and to declare whether such person was acquitted b them on account of such insanity, and if they shall find that said person was insane at the time of the committing of such offense, the court before whom such trial shall be had shall order such person to be kept in strict custody in such place and in such manner as to the court shall seem fit, until His Majesty’s pleasure shall be known; and it shall thereupon be lawful for His Majesty, by and with the advice of his Cabinet Council, to give such order for the safe custody of such person so found to be insane during his pleasure, in such place and in such manner as to him shall seem fit.

 

Section 49.  If on the trial of any person charged with felony or misdemeanor, it shall appear to the jury upon the evidence that the defendant did not complete the offense charged, but that he was only guilty of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury may return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the indictment, and no person so tried as herein lastly mentioned shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanor for which he was so tried.

 

Section 50.  If upon the trial of any person for any misdemeanor it shall appear that the facts given in evidence amount in law to a felony, such person shall not by reason thereof be entitled to be acquitted of such misdemeanor, and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for felon y on the same facts, unless the court before which said trial may be had shall think fit in its discretion to discharge the jury from giving any verdict upon such trial, and to direct such person to be proceeded against for felony, in which case such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanor.

 

Section 51.  Under an indictment for robbery, larceny, or any offense of more than one degree, the jury may, when the evidence will not warrant a verdict of guilty in the degree for which the prisoner is indicted, return a verdict for any lesser degree of the same offense.

 

Section 52.  If on the trial of any person charged with the offense of rape or sodomy, or with the offense of ravishing, carnally abusing any girl under the age of ten years, or with having sexual or carnal intercourse with any female of this Kingdom under the age of fourteen years, the jury shall not be satisfied that he is not guilty thereof, but shall be satisfied that he is guilty of an assault with intent to commit the same, then the jury may return as their verdict that he is not guilty of the offense so charged, and may find him guilty of an assault with intent to commit the same.

 

Section 53.  If upon the trial of any person upon and indictment for robbery it shall appear to the jury that the defendant did not commit the crime of robbery, but that he did commit an assault with intent to rob, the defendant shall not be reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is guilty of an assault with intent to rob; and thereupon the defendant shall be liable to be punished in the same manner as if he had been convicted upon an indictment for feloniously assaulting with the intent to rob; and no person so tried as before lastly mentioned shall be liable to be afterwards prosecuted for an assault with intent to commit the robbery for which he was so tried.

 

Section 54.  If upon the trial of any person indicted for embezzlement, it shall be proved that he took the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of embezzlement, but is guilty of larceny, and in either degree, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such larceny in the degree found.  And if upon the trial of any person informed against for larceny it shall be proved that he took the property in question in any such manner as to amount in law to embezzlement, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of larceny, but is guilty of embezzlement and the charge thereof, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such embezzlement in the degree found, or larceny as aforesaid, shall be liable to be afterwards prosecuted for larceny or embezzlement upon the same facts.

 

Section 55.  If upon the trial of any person indicted for obtaining property by false pretences, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted, and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts.

 

Section 56.  If upon the trial of any indictment for larceny it shall appear that the property alleged in such indictment to have been stolen at one time was taken at different times, the prosecutor shall not by reason thereof be required to elect upon which taking he will proceed, unless it shall appear that there were more than three takings, or that more than the space of six months elapsed between the first and the last of such takings, and in either of the last of such mentioned cases, the prosecutor shall be required to elect to proceed for such number of takings not exceeding three as appear to have taken place within the period of six months from the first to the last of such takings.

 

Section 57.  If upon the trial of two or more persons indicted for jointly receiving any property, it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict upon such indictment such of the said persons as shall be proved to have received any part or parts of such property.

 

Section 58.  Where any indictment containing two or more counts, both for feloniously stealing and of receiving, shall have been preferred against any person, the prosecutor shall not be put to his election, but it shall be lawful for the jury who shall try the same to find a verdict of guilty either of stealing the property or of receiving the same or any part or parts thereof knowing the same to have been stolen; and if such indictment shall have been preferred against two or more persons, it shall be lawful for the jury who shall try the same to find all or any of the said persons guilty either of stealing the property or of receiving the same or any part or parts thereof knowing the same to have been stolen, or to find one or more of the said persons guilty of stealing the property, and the other or others of them guilty of receiving the same or any part or parts thereof knowing the same to have been stolen.

           

Section 59.  If upon the trial of any person for being concerned in a riot or unlawful assembly as described in section 10 of Chapter 38 of the Penal Code, the jury shall not be satisfied that such person is guilty thereof, but shall be satisfied that he is guilty of any misdemeanor mentioned in the section next preceding section 10, then the jury may return as their verdict that he is not guilty of the offense charged, but is guilty of such misdemeanor, and he may be punished accordingly.

           

Section 60.  Under an indictment for murder or manslaughter, the jury may return a verdict of manslaughter in either degree or for assault and battery, as the facts proved will warrant.

           

Section 61.  Where upon the trial of any person charged with the offense of adultery, sufficient proof of marriage shall not be adduced, such person shall not therefore by acquitted, but the court or jury before whom such party is charged may, if the facts proved will so warrant, find the accused guilty of fornication, and such accused person shall thereupon be punished accordingly.

 

XII.—EVIDENCE IN CERTAIN CASES.

           

Section 62.  Where any person shall be proceeded against before any court of criminal jurisdiction for a subsequent offense in either case committed after any previous summary conviction or convictions, a coy of any such conviction certified by the proper officer of the court to which such summary conviction shall have been returned or proved to be a true copy, shall be sufficient evidence to prove a conviction of the former offense and the conviction shall be presumed to have been unappealed against until the contrary be shown.

           

Section 63.  All persons under trial shall be entitled at the time of their trial to inspect without fee or reward all depositions which have been taken against them, and delivered in manner by law required to the proper officer of the court before which such trial shall be had, or copies of such depositions.

           

Section 64.  Depositions taken in the preliminary or other investigation of any charge against any person, may be read as evidence in the prosecution of the same or any other offense whatever, upon the like proof and in the same manner in all respects as they may according to the law now in force be read in the prosecution of the offense with which said person was charged when such depositions were taken.

           

Section 65.  Where upon the trial of any person charged with any offense against Chapter XXXI of the Penal Code, it shall be necessary to prove that any coin produced in evidence against such person is false or counterfeit, by the evidence of any credible witness.

 

XIII.—AMENDMENTS NOT TO PREJUDICE AFTER VERDICT.

           

Section 66.  Every verdict and judgment which shall be given after the making of any amendment under this Act, shall be of the same force and effect in all respects as if the indictment had originally been in the same form in which it was after such amendment was made.

           

Section 67.  If it shall become necessary at any time for any purpose whatsoever to draw up a formal record in any case where any amendment shall have been made under this Act, 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.

 

XIV.—OF JUDGMENT AND EXECUTION

           

Section 68.  The verdict of the jury of the decision of the court, as the case may be, shall, subject to arrest of judgment, found the sentence to be passed in open court, by either of the justices, pursuant to the penalties of the law charged and found to have been violated, subject to the executive clemency, or a motion in arrest of execution for cause.

           

Section 69.  Any judge of a court of record may, for cause shown to his satisfaction, respite any convicted criminal for any length of time, sufficient for the purposes of mercy, or not to work injury to innocent third parties.

           

Section 70.  No person at the time insane, and no woman at the time quick with child, shall suffer capital punishment; neither shall any child suffer such punishment who has not evinced a knowledge of the distinction between right and wrong.

           

Section 71.  In all cases where the law of this Kingdom awards the punishment of death, there shall always intervene at least forty-eight hours between the conviction and the sentence; and at least fourteen days between the sentence and the execution.

           

Section 72.  The marshal, or some one deputed by him, shall inflict the punishment of death, by hanging the criminal by the neck until dead, when the body shall be disposed of pursuant to the direction of the court.  No capital punishment shall be so inflicted until the warrant for that purpose shall be signed by the King; nor shall such punishment be inflicted after His Majesty’s pardon.

           

Section 73.  In all criminal cases where the punishment is less than capital, the court before whom the conviction is had shall proceed as soon thereafter as may be to pass sentence according to law, which sentence shall be recorded by the clerk, and certified to the marshal or his deputy in the order for imprisonment or other punishment, as the case may be.

 

XV.—REPEAL OF FORMER LAWS.

           

Section 74.  The following laws and parts of laws shall be and the same are hereby repealed, Sections 1168 to 1184 of the Civil Code, both inclusive:  An Act entitled “An Act to amend Sections 1168 and 1169 of the Civil Code,” approved on the 24th day of May, A.D. 1866; and Act entitled “An Act to amend Section 1183 of the Civil Code,” approved on the 13th day of May, A.D. 1868, and all other laws inconsistent with the provisions of this Act.

           

Approved this 19th day of September, A.D. 1876.

 

 

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