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CHAPTER XV.

APPEALS.

Sec. 393. Appeal to supreme court.
Sec. 394. Manner of taking appeal.

Sec. 395. Appeal by territory-in what cases taken.
Sec. 396. Time in which must be taken.

Sec. 397. How appeal is taken.

Sec. 398. Appeal by territory does not stay judgment against defendant.

Sec. 399. Appeal not to stay execution; exceptions.

Sec. 400. Appeal by territory from question reserved; what to be certified.

Sec. 401. When appeal stands for trial.

Sec. 402.

When several defendants tried, one may appeal.

Sec. 403. Powers of appellate court on appeal.

Sec. 404. If judgment reversed, duty of supreme court.
Sec. 405. Judgment given without regard to technical errors, &c.,
unless substantial rights affected.

Sec. 406. As to dismissal for informality.
Sec. 407. Judgment of affirmance-effect of.
Sec. 408. Opinions to be in writing.

Section 393. An appeal to the supreme court may be taken by the defendant, as a matter of right, from any judgment against him, and, upon appeal, any decision of the court or intermediate order, made in the progress of the case, may be reviewed.

Sec. 394. An appeal from a judgment in a criminal action, may be taken in the manner and in the cases prescribed in this chapter.

Sec. 395. Appeal to the supreme court may be taken by the territory in the following cases, and no other: First. Upon a judgment for the defendant in quashing or setting aside an indictment. Second. Upon an order of the court arresting the judgment. Third. Upon a question of law reserved by the territory. Sec. 396. The appeal must be taken within six months after the judgment is rendered, and the transcript must be filed within thirty days after the appeal is taken.

Sec. 397. An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the attorney prosecuting. If taken by the territory, a similar notice must be

served upon the defendant, if he can be found in the county; if not found, by posting up a notice three weeks, in the clerk's office.

Sec. 398. An appeal taken by the territory in no case stays or affects the operation of the judgment in favor of the defendant until the judgment is reversed.

Sec. 399. An appeal taken to the supreme court, from a judgment of conviction, does not stay the execution, except when the judgment is for a fine, or fine and costs only, in which case the execution may be stayed by an order of the supreme court or a judge thereof.

Sec. 400. In case of an appeal from a question reserved, on the part of the territory, it is not necessary for the clerk of the court below to certify, in the transcript, any part of the proceedings and records, except the bill of exceptions and the judgment of acquittal. When the question reserved is defectively stated, the supreme court may direct any other part of the proceedings and record to be certified to them.

Sec. 401. An appeal shall stand for trial immediately after filing the transcript, if the supreme court is in session; if not in session, at the next term thereafter, on proof of notice of appeal to the appellee.

Sec. 402. When several defendants are tried jointly, any one or more of them may take an appeal; but those who do not join in the appeal shall not be affected thereby.

Sec. 403. The appellate court may reverse, affirm, or modify the judgment appealed from, and may, if necessary or proper, order a new trial. In either case the cause must be remanded to the court below, with proper instructions and the opinion of the court, within the time and in the manner to be prescribed by rule of

court.

Sec. 404. When a judgment against the defendant is reversed, and it appears that no offence whatever has been committed, the supreme court must direct that the defendant be discharged; but if it appear that the defendant is guilty of an offence, although defectively charged in the indictment, the supreme court must direct the prisoner to be returned, and delivered over to the jailor of the proper county, there to abide the order of the court in which he was convicted.

Sec. 405. On an appeal the court must give judgment, without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.

Sec. 406. An appeal shall not be dismissed for any informality or defect in the taking thereof. If the same be corrected within a reasonable time after an appeal has been dismissed, another appeal may be taken.

Sec. 407. On a judgment of affirmance against the defendant,

the original judgment must be carried into execution, as the appellate court shall direct.

Sec. 408. All opinions of the supreme court in criminal prosecutions must be given in writing, and recorded in the order book.

CHAPTER XVI.

COSTS IN CRIMINAL CASES.

Sec. 409. Costs against defendant unsatisfied, paid by county; duty of district attorney, judge, and commissioners,

as to costs.

Sec. 410. Costs, in offence less than felony, if person discharged.
Sec. 411. Costs if felony charged, and defendant discharged.
Sec. 412. If defendant acquitted on indictment, jury to deter-

mine costs.

Sec. 413. Cases not otherwise provided, county to pay costs.
Sec. 414. In case of conviction, territory to pay no costs.
Sec. 415. Subpoenas for witnesses in criminal cases-costs.
Sec. 416. If witness once recognized or subpoenaed—costs.
Sec. 417. Costs for ironing prisoner, medical services, &c., paid
by county.

Sec. 418. Fines, penalties, and forfeitures—to whom paid.
Sec. 419. Duty of clerk to tax costs.

Sec. 420. Duty of sheriff to make out fee bill and deliver to prosecuting attorney; prosecuting attorney's duties thereon.

Sec. 421. Clerk to keep attendance of jurors and certify. Sec. 422. Attendance of witnesses made under oath; county to pay clerk for certain services.

Section 409. In case the defendant shall be acquitted, or in case he shall be convicted, and executions shall issue against him for the cost-s, and shall be returned unsatisfied in whole or in part, the costs remaining unpaid shall be paid by the county in which the offence was committed; and in case the conviction or acquittal shall be in a county other than that in which the offence was committed, it shall be the duty of the judge before whom the trial was had, and the district attorney prosecuting such defendant, to certify under their hand, authenticated by the seal of the court, the amount of such costs; and it shall be the duty of the board of county commissioners of the county in which such offence was committed, to audit and allow the amount of such costs, and issue an order therefor upon the county treasurer of such county. In all cases, except for a felony, when the indictment shall be returned

"not a true bill," the prosecutor shall be adjudged to pay the costs, unless the grand jury shall determine that the county, and not the prosecutor, shall pay the same. The opinion of a majority of the grand jury, certified by their foreman, stating who shall be liable for costs, shall be conclusive the court rendering judg

ment in the case.

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Sec. 410. If any person charged with an offence less than a felony shall be discharged by the officer taking his examination, the costs shall be paid by the prosecutor, or person on whose oath or information the same shall have been instituted, unless the officer shall certify that there was probable cause for the prosecution, in which event they shall be paid by the county in which the offence was committed. When the prosecutor is condemned to pay the costs, the officer taking the examination shall issue execution for them forthwith, if demanded. When the bill of costs shall be certified to the tribunal transacting county business, for payment, the same shall be strictly examined by the tribunal, and no allowance shall be made but for such services as are expressly compensated by law.

Sec. 411. If a person charged with a felony shall be discharged by the officer taking his examination, or if recognized or committed for any such offence, and no indictment be preferred against him, the costs shall be paid by the county, which shall be certified for allowance, in the manner hereinafter declared.

Sec. 412. If, upon the trial of an indictment whereon the name of the prosecutor is endorsed as such, according to law, the jury shall acquit the defendant, they shall determine and return, together with their verdict, whether the prosecutor or the county shall pay the costs, and the court shall render judgment accordingly.

Sec. 413. In all cases, not herein otherwise provided for, the costs shall be paid by the county in which the offence was committed.

Sec. 414. Whenever any person shall be convicted of any crime or misdemeanor, no costs incurred on his part, except fees for board, shall be paid by the county or territory, except as herein otherwise provided.

Sec. 415. No subpoena for a witness in any criminal case shal be issued, unless the name of such witness is endorsed on the indictment, or the attorney prosecuting, or the prosecutor in the cause, or the defendant or his attorney shail order the same; and no subpoena shall be issued for any witness, unless the accused is in custody, or on trial, or unless the clerk shall be satisfied that he will be in attendance on the court, at the return term of the process; and all costs unnecessarily incurred by a violation of this section shall be taxed against the clerk.

Sec. 416. Whenever a witness in a criminal case is once recognized or subpoenaed, he shall attend under the same until he is

discharged by the court; and no costs shall be allowed for any subsequent recognizance or subpoena against the same witness.

Sec. 417. Whenever the tribunal transacting county business of any county of which the offender shall have committed any crime, for which he is imprisoned, may be satisfied of the necessity of so doing, may make an allowance for ironing the prisoner, and may allow a moderate compensation for medical services, fuel, bedding, and menial attendance, for any prisoner, which shall be paid out of the county treasury.

Sec. 418. All fines and penalties imposed, and all forfeitures incurred in any county, shall be paid into the treasury thereof, for the benefit of said county.

Sec. 419. The clerks of the several courts in the territory in which any criminal cause shall have been determined or continued. generally, and in which the territory or county shall be liable for costs, shall, before the next succeeding term, tax all costs which shall have accrued in the same, and make out and deliver to the attorney prosecuting in said court, within the time aforesaid, a complete fee bill, specifying each item of service, and the fee therefor; and if any clerk fail to perform the duties hereby enjoined on him, any person injured by such neglect, may, by motion in said court, giving two days' notice thereof to such clerk or his deputy, recover against the clerk treble the amount of costs to which he is entitled in the cause, in which the clerk shall have failed to make out and deliver to the prosecuting attorney a fee bill.

Sec. 420. It shall be the duty of the sheriff of any county to make out a bill of all fees due him in any criminal case, or for summoning any grand or petit jury in a criminal action, within twenty days after the close of each term of the court, during which such fees were incurred by the county, and to present the same to far as practicable, whether the services have been rendered for the attorney prosecuting for such county, who shall ascertain, as which charges are made, and whether compensation is expressly given by law for the services charged, or whether greater charges bill has been made out in conformity with law, he shall so certify are made than the law authorizes; and if he find that the said fee in his official capacity; if he do not so find, he shall point out to the sheriff wherein such bill is incorrect; if the sheriff fail to obtain such certificate from the district attorney, the county commissioners, or other tribunal transacting county business, may refuse to allow the same, unless it appear to them that the district attorney has acted unfairly, or has been mistaken in the premises. Sec. 421. The clerk of the district court shall keep the time of attendance of all jurors in criminal cases, and shall certify the same to the county clerk.

Sec. 422. Witnesses for the territory in criminal cases shall make out a bill, under oath, of the fees to which they are entitled

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