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reasons for such discharge shall be entered upon the journal; and such discharge shall be without prejudice to the prosecution.

their Whon jury

SEC. 155. When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Before the verdict is accepted, the jury may he polled at the request of either the prosecuting attorney or the defendant.

agree.

The jury a con

viction shall.

not guilty

SEC. 156. When the indictment charges an offense against the property of another by larceny, embezzlement, or obtaining under false pretenses, the jury, on conviction, shall ascertain and declare in their verdict the value of the property stolen, embezzled or falsely obtained. Sec. 157. Upon an indictment for an offense consisting Judy may fa of different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto, and upon an indictment for any offense, the jury may find the defendant not guilty of the offense, but guilty of an attempt to commit the same, when such an attempt is an offense.

But guilty of attempt.

SEC. 158. Before the sentence is pronounced, on the Before sentence. conviction of felony, the defendant shall be informed by the court of the verdict of the jury, and asked whether he has anything to say why judgment should not be pronounced against him.

Court shali

ment.

SEC. 159. If the defendant has nothing to say, 01 pronounce ja after he shall have made a statement, the court shall proceed to pronounce judgment as is provided by law.

When con

Lession, or.

SEC. 160. Whenever any person shall be convicted, by victed by conconfession or otherwise, of any offense punishable either in whole or in part by fine, such person may move the court to hear testimony in mitigation of the sentence; and it shall be the duty of the court to hear such testimony at such time as may be suitable and proper, at the term of court at which the motion is made, or said court may continue the case to a future term, on the same terms as the case might have been continued before verdict or confession; and it shall be the duty of the prosecuting attorney to attend to

Execution susponded.

Recognizance.

No writ of error allowed

Judgment affirmed,

Convict imprisoned.

Escape

such proceedings on the behalf of the territory, and to offer any testimony necessary to give the court a true understanding of the case.

SEC. 161. When a person shall be convicted of felony, and shall give notice to the court of his intention to apply for a writ of error, or other process by which according to law, cases are taken to the supreme court, the court shall, on application of the person so convicted, suspend the execution of the sentence or judgment against him until the next term of the court.

SEC. 162. No court shall suspend the execution of the sentence or judgment against any person convicted and sentenced for a misdemeanor, unless such person shall enter into recognizance, with such security as the court may require, conditioned that the person so convicted and sentenced shall appear at the next term of such court from term to term, until the case in error shall be determined, and abide the judgment or sentence of the court.

SEC. 163. If no writ of error, or other proceedings in error, be allowed by the next term of the court, after the sentence was pronounced, the court shall, at such term, carry the same into execution.

SEC. 164. If a writ of error or other mode of proceedings in error provided by law, be allowed, and on the hearing. [of] the judgment of the court in which the trial was had shall be affirmed, such court shall carry into execution the sentence pronounced against the defendant at the next term, after the judgment of affirmance is rendered.

SEC. 165. Whenever a person shall be convicted of a felony, and the judgment shall be suspended as aforesaid, it shall be the duty of the court to order the person so convicted into the custody of the sheriff, to be imprisoned until the case in error be disposed of. If a person so convicted shall escape, the clerk of the court, on application of the prosecuting attorney, shall issue a warrant stating such conviction, and commanding the sheriff of the county to pursue after such person into any county in the territory;

and said sheriff shall take such person and again commit

him to the jail of such county.

penitentiary,

SEC. 166. Every person sentenced to the penitentiary conveyed shall, within thirty days after his sentence, unless the when. execution thereof be suspended as aforesaid, be conveyed to the penitentiary of the terrritory by the sheriff of the county in which the conviction took place, and shall there be delivered into custody of the warden of said penitentiary, together with a copy of the sentence of the court ordering such imprisonment, there to be safely kept until the term of his confinement shall have expired, or he shall be pardoned. If the execution of the scatence be suspended, and the judgment is afterward affirmed, the defendant shall be conveyed to the penitentiary within thirty days after the

court shall direct the sentence to be executed.

iffs.

SEC. 167. The sheriffs of the several counties of this Power of aberterritory, during the time they shall be employed in conveying to the penitentiary any person sentenced to imprisonment therein, shall have the same power and authority to secure him in any jail within the territory, and to demand the assistance of any sheriff, jailer or other person within this territory, in keeping such prisoner, as if the sheriff were in his own proper county; and all such sheriffs, jailers or other persons so called upon, shall be liable, on refusal, to the same penalties as if the sheriff making the demand were in his own county.

SEC. 168. When any person convicted of an offense Confinement in shall be sentenced to imprisonment in the county jail, the county juil. court shall order the defendant into the custody of the sheriff, who shall deliver him, together with the record of conviction, to the jailer, in whose custody he shall remain in the jail of the prop.r county, until the term of his confinement shall have expired, or he shall have been pardoned, or otherwise legally discharged.

SEC. 169. Whenever a fine shall be the whole or part Fine. of a sentence, the court may, in its discretion, order that the person sentenced shall remain confined in the county jail until the amount of such fine and costs are paid..

Capital panishment.

Execution within jail:

No jail in county

Who may be present.

Military needed.

Return of pro

ceedings.

Insanity of ⚫onvict.

SEC. 170. When any person shall be sentenced to be hung, such punishment shall be inflicted in the immediate vicinity of the jail, within an inclosure to be prepared for that purpose under the direction of the sheriff, which inclosure shall be higher than the gallows, and so constructed as to exclude the view of persons outside thereof.

SEC. 171. In all cases in which the jail in any county shall be of such construction that the sentence of death can be conveniently carried into execution within its walls, no inclosure need be prepared, as is provided in the preceding section, but such execution shall take place within the walls of the jail.

SEC. 172. Whenever the sentence of death shall be about to be carried into execution in any county of this territory which at the time has no jail, it shall be the duty of the sheriff to cause such execution to be conducted at such convenient place at the county seat as he may select.

SEC. 173. Besides the sheriff and his assistants, the following persons may be present at the execution, and none others: The clergyman in attendance upon the prisoner, such other persons as the prisoner may designate, not exceeding six in number, and such other persons as the sheriff may designate, not exceeding twelve in number.

SEC. 174. Whenever the sheriff shall deem the presence of a military force necessary to carry into effect the provisions of the four preceding sections, he shall make a written requisition upon the officer of the militia highest in command then in his county, who shall issue the necessary orders to insure a compliance with the requisition of such sheriff.

SEC. 175. Whenever the sheriff shall inflict the punishment of death upon a convict, in obedience to the command of the court, he shall make return of his proceedings as soon as may be, to the clerk of the court where the conviction was had, and the clerk shall subjoin the return to the record of conviction and sentence by recording the same.

SEC. 176. If any convict sentenced to the punishment of death, shall appear to be insane, the sheriff shall forth

with give notice thereof to a judge of the district court of the judicial district, and shall summon a jury of twelve impartial men to inquire into such insanity, at a time and place to be fixed by the judge, and shall give immediate notice thereof to the prosecuting attorney.

SEC. 177. The judge, clerk of the court, and prosecuting attorney, shall attend the inquiry. Witnesses may be produced and examined before the jury. The finding shall be in writing, signed by the jury. If it be found that the convict is insane, the judge shall suspend the execution of the convict until the sheriff shall receive a warrant from the governor of the territory, directing such execution. The finding of the jury, and the order of the judge, certified by the judge, shall be by the clerk entered on the journal of the

court.

Execution sus pended.

Sheriff to transmit to Gov

SEC. 178. The sheriff shall transmit immediately, a certified copy of such finding to the governor, who may, as ernor. soon as he shall be convinced that the convict has become of sound mind, issue a warrant appointing a time for his execution.

SEC. 179. If a female convict, sentenced to the punish- Pregnancy. ment of death, appear to be pregnant, the sheriff shall in like manner summon a jury of six persons, who, on like proceedings being had as in the case of an insane convict, shall return a finding signed by them.

suspended.

SEC. 180. If by such finding it shall appear that such Execution female convict is with child, the sheriff shall in like manner suspend the execution of her sentence, and shall transmit the finding to the governor, who, on being satisfied that such woman is no longer pregnant, shall issue a warrant appointing a day for her execution.

TITLE XIV.

what reasons granted,

Of New Trials, Motions in arrest and Error-New Trials. SEC. 181. A new trial, after a verdict of conviction, New trial, for may be granted on the application of the defendant, for any of the following reasons effecting materially his substantial rights:

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