the cause is continued the defendant must be held in custody, or give a recognizance for his appearance on the day and hour to which the cause is adjourned. And, generally, the accused is entitled to a jury trial, if he demands it. The burden of the proof is upon the prosecution, and the accused must have the benefit of all reasonable doubts. The mode of empanelling the jury differs in the various States. After the jury is selected and sworn, the evidence is introduced. The witnesses are brought into court by a subpæna issued by the justice and generally served by the constable. The witnesses must be sworn. Depositions may be used by the accused, but not against him. The competency of the witnesses and the admissibility of the testimony are questions to be determined by the justice, but the effect of the testimony and the credibility of the witnesses are questions that fall within the province of the jury to decide.3 After the testimony is all in, when there are one or more counts in the complaint for violation of the liquor laws, or similar offences, and the court has permitted the prosecutor to offer evidence tending to prove several distinct sales, the defendant, before he is put on his defence, may, by motion, require the prosecutor to elect upon what particular transaction he will rely for a conviction.4 Then the defendant offers his evidence, and afterwards the arguments of counsel are heard, if the parties are represented by counsel, then the jury are instructed by the court, if in a State where it is allowed, and retire to consider the testimony. The jury should be kept together for a reasonable time, if they do not soon agree or arrive at a conclusion unanimously

N. Car. (1883), §§ 897 to 901; Code Ala., § 4628; and the statutes of the several States. The trial may be had on a plea in abatement, which must be filed and heard before the defendant pleads to the complaint. See title ABATEMENT vol. I, p. II.

1. Jury Trial-The right to jury trial in criminal cases is inviolate. In re Rolfs, 30 Kan. 762; In re Donnelly, 30 Kan. 191. Compare Byers v. Com., 42 Pa. St. 89. State v. Baker, 24 Mo. 437; but the jury fees do not have to be advanced. Rev. Stats. Ill. (1880), ch. 38, § 384. But in certain cases if a jury is demanded in Alabama, justice binds over. Ex parte Dunkein, 72 Ala. 241. For a collection of the substance of the statutes of the various States with reference to the mode of selecting the jurors, and empanelling the jury, see Murfree's Justice Practice, § 83. While in all States where provision is made for a jury the number is not always the same in civil as in criminal cases, the mode of selecting is substantially the same. GenGen

erally in criminal cases the accused is entitled to twelve jurors, yet, if the accused consent, a trial may be had by a less number. But the justice does not render himself liable to the accused if he tries the case with a jury of six over the defendant's demand for twelve jurors. Clark v. Spicer, 6 Kan. 440. The court may permit the jury, in open court, to make a formal correction of their verdict, 67 Mo. 41. Or the court, with the consent of the jury, may formally correct it. State v. Potter, 16 Kan. 83.

Challenges. In some States, in trials for misdemeanors before a justice, either party may challenge to the same extent as in trials for like offences in the higher court.

2. Taylor on Evidence (Text Book Series), § 2; Greenleaf Ev. § 2.

3. Taylor on Evidence (Text Book Series), § 2; Greenleaf Ev. § 2.

4. State v. Smith, 22 Vt. 74; Stockwell v. State, 27 Ohio St. 563; State v. Schweiter, 27 Kan. 500. See CoмCOMPLAINT, supra, this title.

upon the testimony. If they do not agree within a reasonable time, and there is no prospect of an agreement, they should be discharged from the further consideration of the case, and a new jury empanelled, if the accused be not willing to submit to a trial by the justice. If the jury agree upon a verdict they must write it out and return it to the justice; it must be signed by the foreman," and the justice must publicly read the verdict and ask the jury if it is their verdict, which question is to be answered by all the jurymen. Then the jury may be "polled" by either party-that is, to ask each juryman if it is his verdict; if all answer in the affirmative, the jury is then discharged; if any one of them answer in the negative, the jury are then ordered by the justice to retire for further consideration of their verdict. If the verdict is agreed upon and read, the justice then records the same, and he then must "forthwith" or "immediately" render judgment thereon3 publicly. If the verdict is "not guilty," the accused must immediately be discharged. And in some States, "if the justice or jury trying the case shall state in the finding that the complaint was malicious or without probable cause, the justice must enter judgment against the complainant for all costs that shall have accrued in the proceedings had upon such complaint, and shall commit such complainant to jail until such costs be paid," unless a bond be given to pay such judgment within a fixed number of days.4

a. WHEN TRIAL MUST CEASE.-If, during the trial, it shall appear that the accused ought to be put upon his trial for an offence not cognizable before the justice, the justice shall immediately stop the proceedings before him as a trial court, and proceed as in other criminal cases exclusively cognizable before a higher court in the county. But the title to land being involved

1. Two or three hours' consultation is not sufficient to justify their discharge because they cannot agree. Gulick v. Van Tilburgh, 1 Harr. (N. J.) 417.

2. Comp. Laws Kan. (1885), ch. 83. § 15; 1 Rev. Stats. Mo. (1879), ch. 24, § 204S. If the jury be discharged, failing to agree, in the absence of the defendant, it does not entitle him to be discharged from custody. State v. White, 19 Kan. 445; State v. Vaughan, 29 Iowa 286; U. S. v. Perez, 9 Wheat. (U. S.) 579.

3. To refuse the accused the right to "poll" the jury is error. James v. State, 55 Miss. 57; s. c, 30 Am. Rep. 496; State v. Hughes, 2 Ala 102; State v. Muir, 32 Kan. 481. Judgment must be rendered immediately. Hepler v. State, 43 Wis. 479; Austin v. Brook, 16 Neb. 642; Hanson 7. Lawson, 19 Kan. 201; Board etc. of Marion v. Turk, 2 T. & C. (N. Y.) 367. The last applies more par

ticularly to civil cases. And as to the construction of "rendered" and "entered," see Conwell 7. Kuykendall, 29 Kan. 708. Explained 15 Barb. (N. Y.) 134; see Sibley v. Howard, 3 Den. (N. Y.) 72; McNamara v. Spees, 25 Wis. 539; Consent, Huff v. Babbott, 14 Neb. 150.

4. Comp. Laws Kan. (1885), ch. 83, § 18. In re Ebenhack, 17 Kan. 618; State v. Donnell, 11 Iowa 452; State v. Darr, 63 N. Car 516. But consult further In re Stonebergert, 31 Kan. 638; State v. Reisner, 20 Kan. 548. See also Gen. Stats. Minn., ch. 65, § 157; Casey v. Sevatson, 30 Minn. 516; I Rev. Stats. Mo. (1879), ch. 24, art. 23, § 2054. Where the provisio for collecting the costs is by execution on the judgment.

5. And generally, see Ex parte McGrew, 40 Tex. 472; State v. Craig, 82 N. Car. 68; State v. Pierre, 65 Me. 293;

in the criminal action does not oust the justice jurisdiction.1 b. JUDGMENT.-Whenever the defendant shall be tried and found guilty, either by the justice or the jury, or shall enter a plea of guilty, the court must render judgment thereon, assessing such punishment either by fine or imprisonment, or both, as the nature of the case may require and the law permit; in such case the defendant must, in addition to fine or imprisonment, be adjudged to pay the costs.2 And in some States he may, and in others he shall, be committed to the county jail until both fine and costs are paid.3 In other States the fine is collected on execution or capias. It is held that where a justice has jurisdiction to punish by imprisonment or by a fine, he cannot adjudge a fine and imprisonment.5 In order to render a valid judgment against the accused he must be brought before the justice and be present when the judgment is rendered. In some States the jury assess.

the amount of punishment to be inflicted upon the accused.1 A joinder of several misdemeanors charged against the accused of the same grade, each within the jurisdiction of the justice, is per missible in a complaint; 2 yet, in some States, the aggregate fine imposed against the defendant cannot exceed the maximum fine permitted in one offence.3 In others the aggregate fine or im prisonment or both may exceed the maximum penalty that can be imposed upon any one offence charged in the complaint, and where imprisonment is imposed under one count, the imprisonment under the following one should be adjudged to commence at the termination of the imprisonment under the other, and so on with all of them. If the defendant be acquitted on any of the counts he should recover costs thereunder.5 But it is im perative that a judgment be rendered by the justice before he issues execution of any sort.6

c. EXECUTION.-The judgment is generally enforced by committing the defendant to the county jail until the fine and costs. are paid. But in some States an execution is first issued against the goods and chattels of the defendant, if the constable shall return the execution "no goods and chattels," the justice shall issue a capias against the body of the defendant, and the constable places the defendant in jail.8 "Expiration of time without imprisonment is in no sense an execution of sentence."9 Where the defendant, convicted and adjudged to pay a fine and to be committed to jail until it is paid, appeals, and the appeal is dismissed because of insufficient recognizance, the justice can commit him under the judgment.10

d. HABEAS CORPUS-CERTIORARI.-If the record of the justice shows a conviction of an offence without jurisdiction, and

1. Rev. Stats. Ill. (1880), ch. 38, § 385; 1 Rev. Stats. Mo. (1879), ch. 24, art. 23, § 2048.

2. Criminal Law Mo. (Kelly), § 204; In re Macke, 31 Kan. 54; People v. Costello, Den. (N. Y.) 83; Roscoe Cr. Ev., 216; Com. v. Gillespie, 7 S. & R. (Pa.) 476; 1 Chit. Cr. L., 249; Rex v. Levy, 2 Stark. 458; Rex v. Jones, 2 Camp. 132.

3. Hensoldt . Petersburg, 63 Ill. 111; People v. Liscomb, 60 N. Y. 559; s. c., 19 Am. Rep. 223.

4. State v. Carlyle, 33 Kan. 716.
5. State v. Brooks, 33 Kan. 708.
6. Lanpher v. Dewell, 56 Iowa

jail, if he be unable to pay the fine and
costs, may be discharged. In Missouri,
"on complying with the law for the re-
lief of insolvents." I Rev. Stats. Mo.
(1879), ch. 24, § 2051. In Illinois, by
being in jail forty-eight hours, "and if
the fine exceed $10, then to remain in
said jail twenty-four hours for every
$5, over and above the said $10, and so
on in proportion to the amount of said
fine." Rev. Stats. Ill. (1880), ch. 38,
§ 388. In Kansas, by the county com
missioners, from imprisonment for fail-
ure to pay fine and costs, "on satisfac-
tory proof to them that said person is
unable to pay the same," but the fine
and costs, if possible, may be after-
wards collected by execution as in
civil cases on the judgment. Comp.
Laws Kan. (1885), ch. 82, § 253.
9. Dolen's Case, ΙΟΙ
Mass. 219;
Ex parte Cifford, 29 Ind. 106; Hollon
v. Hopkins, 21 Kan. 459.

10. In re Shaw, 31 Minn. 44.

A

the defendant is imprisoned thereunder, habeas corpus is a proper remedy; but when there are mere irregularities therein, the redress must be had in some of the modes pointed out by statute for review in the appellate court.1 If the justice refuse an appeal within the statutory period, the remedy of the defendant is a writ of certiorari,2 and if the judgment is affirmed, it must be executed, the certiorari only suspends it.3

e. APPEAL.—Generally, in all criminal cases cognizable before justices, the accused may appeal from a judgment against him,a and in some States even when he has pleaded guilty.5 The appeal must be taken in the manner, and within the time prescribed by law. The appeal is taken by entering into a recognizance with sureties to appear at the appellate court in the amount prescribed by law, within the time required by the statute.6 The appeal is to the "circuit court" in some States, to the district court" in others, or to "other court having jurisdiction in criminal cases. An appeal suspends the effect of the judgment until final judg

1. Murfree's Justice, Practice, § 1033; Hamilton's Case, 51 Mich. 174; In re Rolfs, 30 Kan. 758; Ex parte Sam, 51 Ala. 34; Ex parte McGrew, 40 Tex.

472.

2. In re Kennedy, 55 Vt. 1. See also where the justice proceeds erroneously. State v. Dennis, 43 N. J. L. 380. Appellate Procedure, Starkweather v. Sawyer, 63 Wis. 297.

3. People v. Hobson, 48 Mich. 28. 4. Rev. Stat. Mo. (1879), ch. 24, art. 23, § 2058.

In Missouri, immediately after judgment by filing an affidavit "stating that he is aggrieved by the verdict and Judgment in the case, and that he does not make his appeal for vexation and delay," and giving a recognizance with good and sufficient sureties in a sum deemed proper by the justice, conditioned as the law requires, he may appeal, without giving the recognizance, by filing the affidavit, but in that case he is committed to the county jail to remain until discharged by "due course of law." I Rev. Stat. Mo. (1879), ch. 24, § 2359. So also in Vermont. In re Kennedy, 55 Vt. 1. In Illinois, the same as in civil cases, except no damages shall be allowed. Rev. Stat. Ill. (1880), ch. 38, § 389. In Kansas, within twenty-four hours after judgment by entering into a recognizance in a sum with sureties to be approved by the justice, conditioned for his appearance at the district court or criminal court of the county at the next term, to answer the complaint. Comp. Laws Kan. (1885), ch 83, § 21. See

66

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statutes in the several States. But there is no appeal in Texas if the judgment is for less than twenty dollars. Pevito v. Rodgers, 52 Tex. 581. In Iowa it is the justice's duty to inform the accused that he can appeal, but if he fails so to do it does not affect the judgment. Jacoby v. Waddell, 61 Iowa 247.

5. State v. Little, 42 Vt. 430.

6. In Mississippi, it is competent for him, upon furnishing the bond required by the statute, to appeal at any time after conviction, presumably, however, before the full execution of the sentence." Murfree's Justice, Practice, § 1118; Miss. Code (1880), § 2355; Smith v. Boykin, 61 Miss. 110. In Illinois, in the same time and manner as in civil cases. Rev. Stat. Ill. (1880), ch. 38, § 389. In Missouri, by filing an affidavit "that he is aggrieved by the verdict and judgment," and also entering into the required recognizance immediately after judgment is rendered. I Rev. Stat. Mo. (1879), ch. 24, § 2058. In Kansas, by entering into a recognizance within twenty-four hours after judgment. Comp. Laws Kan. (1885), ch. 83, § 21.

7. In Kansas, to the district court. Leavenworth v. Weaver, 26 Kan. 394. In Missouri, outside St. Louis, to circuit court in St. Louis of criminal correction. State v. Barada, 49 Mo. 504. In Illinois, outside Cook county, to the circuit court in Cook county to criminal court thereof. Rev. Stat. Ill. (1880), ch. 38, § 389. In Iowa, to circuit court only. State v. Knapf, 61 Iowa 522. In Virginia, to the county court.