If the defendant moves for a new trial and in arrest of judgment, and is heard thereon, he need not be formally inquired of to show cause why judgment should not be pronounced. McCorkle v. State, 14 Ind. 39.

1924. (1855.) Judgment rendered.-280. If no sufficient cause be alleged or appear to the court why judgment should not be pronounced, it shall thereupon be rendered.

If the judgment is not entered of record, the court, on proper application, may cause a record thereof to be made. Smith v. State, 71 Ind. 250.

1925. (1856.) When may bind to keep the peace.-281. In case of a conviction for an offense not punishable by death or imprisonment in the state prison, in addition to the punishment required by law, the court may, in its discretion, require the defendant to enter into a recognizance with surety, in a reasonable sum, to keep the peace for any time not exceeding one year, or, in default thereof, to stand com

mitted.

1926. (1857.) Judgment for fine and costs.-282. When the defendant is adjudged to pay any fine and costs, the court shall order him to be committed to the jail of the county until the same are paid or replevied. Such judgment shall be without relief from valuation or appraisement laws.

This provision for imprisonment for costs is constitutional. Ind. 127.

McCool v. State, 23

On a failure of the clerk to tax the costs against the defendant, such clerk is not liable for such costs. Ex parte Tompkins, 15 Ind. 269.

1927. (1858.) Costs not to be taxed.-283. In case of the conviction of a defendant, no cost for mileage or attendance shall be taxed against such defendant in behalf of any witness who was summoned by the state to testify, but whose name was not indorsed upon the indictment nor upon the information, and who was not sworn in the cause, or who, if sworn, did not testify to any material fact in aid of the prosecution.

1928. (1859.) Abatement of nuisance.-284. After any person shall have been convicted of erecting, continuing or maintaining any public nuisance, the court may make it a part of the judgment that such nuisance be removed by the proper officer; and no proceeding, regulating the writ of ad quod damnum shall bar any prosecution for erecting, continuing or maintaining any public nuisance.

When a nuisance consists in the manner in which a business is carried on, the place where the nuisance is maintained can not be abated. Bloomhuff v. State, 8 Blkf. 205. It is neither a cruel nor unusual punishment to adjudge the abatement of a nuisance. McLaughlin v. State, 45 Ind. 338.

1929. (1860.) Stay.-285. Every defendant in a criminal action, against whom a judgment has been rendered, may stay the execution for the fine assessed and costs for ninety days from the rendition of the judgment, by entering replevin bail in like manner as is provided in civil actions. The entry of replevin bail has the same force as in civil

actions.

When replevin bail is entered the power to imprison ceases. Marsh, 75 Ind. 548.

Dinckerlocker v.

If the replevin bail pays the judgment, he is subrogated to any rights the state may have in any bond or security for the payment of such judgment. Kane v. State, 78 Ind. 103.

1930. (1861.) Execution.-286. Upon a judgment for a fine and costs, execution shall be issued against the property of the defendant, and returned in the same manner as in civil actions.

1931. (1862.) Time of imprisonment.-287. Any person imprisoned for failure to pay or replevy any fine or costs may be ordered to be discharged by the court, or by the judge of any court, after being imprisoned one day for every dollar of the fine and costs, if it appear by satisfactory proof that such person is unable to pay or replevy the same, but the execution may issue against the property of the defendant, as in other judgments.

When imprisonment and a fine are both assessed the time served on such imprisonment can not be considered on an application for a discharge for inability to pay the fine. Ex parte Tongate, 31 Ind. 370.

[1881 S., p. 560. In force April 15, 1881.]

1932. (1863.) Stay of fine-Arrest.-1. Whenever a person is adjudged guilty of a misdemeanor or felony, and his punishment is by fine, or by fine and imprisonment, the judgment shall be that he stand committed until said fine is paid or replevied; and it shall be unlawful for the sheriff or constable to release such person until said judgment is either paid in money or replevied by good freehold securities residing in the county where the judgment is rendered. In case said judgment is replevied, it shall be the duty of the clerk or justice of the peace, upon the expiration of the time for the stay of the judgment, to issue to the sheriff or constable a copy of said judgment, with his mandate attached, under the hand or hand and seal of the court; and it shall be the duty of the sheriff or constable to arrest the defendant and commit him to jail unless or until said fine and costs are paid: Provided, Any defendant imprisoned under the provisions of this act may be released therefrom as now provided by law.

If an officer having charge of the prisoner releases him on the promise of another to pay the fine the officer can not enforce such promise. Kenworthy v. Stringer, 27 Ind. 498.

1933. (1864.) Last section retrospective.-2. The provisions of this act shall apply to all fines heretofore assessed as well as to all fines hereafter to be assessed.

This section is unconstitutional so far as it applies to cases where bail had been entered prior to the passage of the law. Dinckerlocker v. Marsh, 75 Ind. 548.

1934. (1865.) Penalty against officer.-3. Any clerk, sheriff, justice of the peace, or constable failing to perform the duties specified in this act, shall be deemed guilty of a misdemeanor; and, upon conviction, shall be fined not to exceed one hundred dollars for each offense.

[1881 S., p. 114. In force September 19, 1881.]

1935. (1866.) Male prisoners in jail to labor.-288. All able-bodied male prisoners, sentenced to the county jail, while held for punishment, or the non-payment of fines or costs, whether the judgment also embraces imprisonment or is a fine and costs only, may be put at hard labor upon the public wharves, streets, alleys, or other thoroughfares in any city or town in the county where convicted, or upon any public road or highway therein, or upon any other work or improvement for the public good or benefit, under such rules and regulations as the board of county commissioners shall prescribe; and the sheriff or custodian of such prisoners shall obey all such rules and regulations.

1936. (1867.) Guards.-289. The expense incurred in guarding the prisoners while at work outside the limits of the jail shall be paid out of the county treasury on the order of the board of commissioners of such county. The guard shall be appointed by the sheriff, and vested with all the powers of a bailiff or deputy sheriff (and shall be, if in any incorporated town, the marshal thereof; and, if in any city, the street commissioner thereof, so far as the same may be practicable); and such guard shall be paid therefor out of the county treasury such sum as the board may fix and deem just.

1937. (1868.) Copy of judgment to sheriff.-290. When any person is convicted and sentenced to imprisonment in the state prison, the clerk must, without delay, certify, under seal of the court, a copy of the judgment to the sheriff.

1938. (1869.) Sheriff to deliver prisoner.-291. The sheriff must, as soon as practicable, convey the convict to the state prison, and deliver him to the keeper thereof, with a copy of the judgment, and take from the keeper a receipt for the convict.

1939. (1870.) Sheriff may demand assistance.-292. The sheriff, in conveying a convict to the state prison, may demand the assistance of any sheriff, jailer or citizen, and the use of any jail in any county through which he may pass, as occasion may require.

1940. (1871.) Convict kept at hard labor.-293. When any person is imprisoned in the state prison, he shall be kept at hard labor therein during the period for which such person was sentenced.

[Acts 1889, p. 192. In force March 6, 1889.]

1941. (E. S. 367.) Death penalty-How and by whom executed.That the punishment of death, prescribed by law, shall be inflicted by hanging by the neck until the person is dead, which hanging shall take place before the hour of sunrise upon such day, not less than one hundred days after conviction, as the court may adjudge; and when sentence of death is pronounced in any of the counties of Warren, Fountain, Montgomery, Boone, Hamilton, Madison, Delaware, Randolph or Marion, or in any county lying north of said counties in this state, the warden of the state prison north, or, in case of his death, disability or absence, his deputy shall be the executioner; and when

the sentence is pronounced in any other county in this state than those above mentioned, the warden of the state prison south, or in case of his death, disability or absence, his deputy shall be the executioner: Provided, That in any county in this state in which any person may be under sentence or judgment of death at the time of the taking effect of this act, the said sentence and judgment shall be carried into effect and executed under the law now in force for the infliction of the death penalty, which said law is hereby continued in existence for such

purpose.

The time fixed for carrying the sentence into execution, can not be less than the time prescribed by statute even with the consent of the defendant. Koerner v. State, 96 Ind. 243.

Statutes authorizing the death penalty are constitutional. Rice v. State, 7 Ind. 332; Driskill v. State, 7 Ind. 338.

1942. (E. S. 368.) Warrant.-2. Whenever any person is sentenced to death, the clerk of the court in which sentence is pronounced, at the expiration of two weeks thereafter, shall issue his warrant, under the seal of the court, reciting the conviction and sentence, and directed to the warden of the proper state prison, commanding him to proceed, at the time and place named in the sentence, to carry the same into execution, as provided in the preceding section, and shall intrust such warrant to the sheriff of the county, to be by him deliv ered to the said warden, together with the condemned person, as provided in the following section.

1943. (E. S. 369.) Sheriff's duty.-3. Immediately upon the receipt of such warrant the sheriff shall transport said condemned person to the proper state prison, and shall there deliver him and the warrant aforesaid into the hands of the warden, and shall take from said warden his receipt for such person and warrant, which receipt the sheriff shall return to the office of the clerk of the court where judgment of death was rendered.

1944. (E. S. 370.) Prisoner confined-Who may see.-4. Upon the receipt of such condemned person by the warden of the state prison, he shall be confined therein until the time for his execution arrives, and while so confined, all persons outside of said prison shall be denied access to him, except his physicians and lawyers, who shall be admitted to see him when necessary to his health or the transaction of business, and the relatives and spiritual advisers of the condemned, who shall be admitted to see and converse with him at all proper times under such reasonable regulations as may be made by the directors and warden of the prison; and in case the condemned be a female, and an inquiry be had as to her pregnancy, as hereinafter provided for, such persons as it is proper should see her in the proper conduct of such inquiry shall be admitted.

1945. (Ē. S. 371.) Execution inside prison.-5. The execution shall take place inside of the walls of the state prison, and within an inclosure to be erected or arranged for that purpose, if not suitable exists, under the direction of the warden and the board of directors,

which enclosure shall be higher than the gallows, and so constructed as to entirely exclude the view of persons outside.

1946. (E. S. 372.) Who may be present.-6. The following persons may be present at the execution, and none other: The warden and such persons as may be necessary to assist him in conducting the execution, the directors of the prison, two physicians, including the prison physician, the spiritual advisers of the condemned, the chaplain of the prison, and any of the relatives or friends of the condemned person, not to (?) exceeding ten in number, whom he may request shall be admitted.

1947. (E. S. 373.) Escape-Re-arrest.-7. If the person condemned escapes after sentence, and before his delivery to the warden, and be not re-arrested until after the time fixed for execution, any person may arrest him and commit him to the jail of the county in which he was sentenced, and thereupon the court of said county, on notice of such arrest being given by the sheriff, shall again appoint a time for his execution not less than thirty days from the date of such appointment, which appointment shall be by the clerk of said court immediately certified to the warden of the proper state prison, and shall deliver such certificate to the sheriff, who shall deliver the same, together with the warrant aforesaid and the condemned, to the warden, who shall receipt to the sheriff for the same, and proceed at the appointed time to carry the sentence of death into execution, as provided in this act.

1948. (E. S. 374.) Escape from warden.-8. If the condemned person escapes after his delivery to the warden, and be not retaken before the time appointed for his execution, any person may arrest him and commit him to the proper state prison, whereupon the warden shall certify the fact of his escape and recapture to the court in which sentence was passed, and thereupon the court shall again appoint a time for the execution, which shall be not less than thirty days from the date of such appointment, and thereupon the clerk of said court shall certify such appointment to the warden of the state prison, who shall proceed at the time so appointed to execute the condemned as herein before provided.

1949. (E. S. 375.) Respite-Death-Pardon.-9. When execution of sentence is suspended or respited to another day, the same shall be noted on the warrant, and on the arrival of such day the warden shall proceed with such execution, and in case of the death of any condemned person before the time for his execution arrives, or his pardon or the commutation of his sentence by the governor, or the reversal of the judgment of conviction, no execution shall be had, but in all such cases, as well as when the sentence is executed, the warden shall return the warrant and certificate, with his proceedings properly indorsed thereon, to the clerk of the court in which sentence was passed, who shall record said warrant and return in the record of the cause.

1950. (E. S. 376.) Pregnancy of female prisoner.-10. If a female defendant sentenced to death appears to be pregnant and the physician