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preclude a justice of the Supreme Court from allowing a writ of error, and making an order staying proceedings after conviction in a capital case.1

§ 155. APPLICATION FOR PARDON.

The Executive of this State has prescribed the following regu lations to be observed in making an application for a pardon: "Before any application for a pardon is presented to the Governor, written notice thereof must be served upon the district attorney of the county in which the conviction was had; and proof of the service of such notice presented to the Governor.

"Notice of the application must be published for four weeks in the State paper, and also in the county paper, printed in or nearest to the town in which the conviction was had, unless (in the opinion of the Governor) justice requires that the publication be dispensed with.

"If the conviction was had before a justice of special sessions, or a justice of the peace, notice of the application must be served upon him; and proof of such service presented with the application.

"The minutes of the testimony taken at the trial, or a concise statement of the case as proved, to be furnished by the judge, district attorney, or justice who tried the prisoner, are required before the application is acted upon. Also, a certificate of the warden or keeper of the prison, of the conduct of the prisoner during his or her confinement in prison."2

Whenever an application shall be made to the Governor for a pardon, he may also require the district attorney of the county in which the conviction of the person for whom the pardon is asked was had, and it is thereupon the duty of such district attorney to furnish the Governor, immediately on such requisition being made, with a concise statement of the case as proved on the trial, together with any other facts or circumstances which might have a bearing on the question of granting or refusing a pardon.3

A printed letter or circular, in accordance with the above provision, is usually sent by the Executive to the district attorney of

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the county where the conviction was had; and in most instances. a similar letter is sent to the judge who presided at the trial.

By statute, the district attorney is also required to file his minutes of evidence taken on criminal trials, in the office of the clerk of the county; and it is also made the duty of the county clerks of the several counties in this State, to transmit to the Governor, on his application, such minutes of testimony.1

The power conferred upon the Executive by the Constitution to grant pardons, includes the power of granting a conditional pardon. Such condition may be banishment from the United States; and on a breach of the condition, the pardon becomes void, and the criminal may be remanded to his original sentence. The power to remand him may be exercised by the court in which he was convicted, or by any court of superior criminal jurisdiction.2

§ 156. OF MAKING AND FILING STATEMENTS OF CONVICTION. Upon the adjournment of criminal courts of record, it becomes the duty of the district attorney to make and file with the clerk of the court a statement of the convictions had during the session of the court, and the clerk is then to transmit the same to the office of the Secretary of State. The provisions of the act regulating the same are given in the next succeeding sections. In a pamphlet transmitting the act to public officers and containing instructions for the same, the Secretary of State says:

"The object of the original law was to furnish evidence which would be sufficient, on an indictment for a second offence, to prove the facts of a prior conviction. Those facts, therefore, must appear in the minutes and in the transcript, or the transcript itself will be of no sort of use. A general statement that the defendant was convicted of 'grand larceny,' or of 'larceny,' or of 'arson in the second degree,' or any other similar and general description of the offence, will not prove the facts necessary to be established on the trial of an indictment for a second or subsequent offence. Such an indictment must aver that the defendant, at a particular court, held at a particular time and place, before persons to be named, was convicted of a specific offence, which must be stated with as much precision and certainty, as to

1 Laws 1860, ch. 135, p. 216.

Peo. v. Potter, 1 Park., 47. Vide 2 R. S., 745, § 28.

time, place, manner, person on whom committed, and all the legal ingredients to constitute crime, as in the first indictment. Of course these averments must be sustained by proof; and the transcript furnished by the clerk of the minutes of conviction is the proof which the original law intended should be adduced. And this was done to promote public justice, to save trouble to the district attorneys, and to avoid the enormous expense of procuring exemplifications of records of conviction. By the act annexed, the Legislature has more distinctly and directly declared this object, and what the statement must contain to accomplish it."

§ 157. DISTRICT ATTORNEY TO FURNISH STATEMENT OF CONVICTION. Within ten days after the adjournment of any criminal court of record in this State, the district attorney of the county in which said court shall have been held, shall furnish to the clerk of said court such a description of the offence committed by every person convicted of crime, abridged from the indictment, as would be sufficient to maintain the averments relating to such offence, necessary to be made in an indictment for a second offence. Every district attorney who shall neglect or refuse to prepare and deliver to the said clerk such statement within the time above specified, shall forfeit the sum of fifty dollars for each case of neglect or refusal, to the use of the people of this State; said penalty to be recovered in a civil suit by the attorney general.1

§ 158. DUTY OF THE CLERK THEREON.

Within twenty days after the adjournment of any criminal court of record, the clerk thereof shall transmit to the office of Secretary of State such statement, thus furnished by the district attorney, of all convictions had at said court; and in case of his refusal or neglect to transmit the same as aforesaid, the said clerk shall be liable to the like penalty as prescribed in the foregoing section.2

§ 159. ADDITIONAL STATEMENT IN RELATION TO INDICTMENTS TO BE

MADE BY CLERK OF COUTT.

Within twenty days after the adjournment of any criminal court of record, the clerk thereof shall also transmit to the office 1 Laws 1867, ch. 604, § 1, vol. 2, p. 1630. • Id., § 2.

of the Secretary of State a duly certified statement of the number of indictments tried at such court, specifying the number for each separate offence; the number on which convictions were had; the number on which defendants were acquitted; the number of indictments against persons who were convicted on confession; and also the number of indictments against persons who were discharged without trial.1

§ 160. STATEMENT TO BE MADE BY SHERIFF IN RELATION TO CON

VICTIONS.

Within twenty days after the adjournment of any criminal court of record, the sheriff of the county in which such court shall be held shall report to the Secrerary of State the name, occupation, age, sex, and native country of every person convicted at such court, of any offence, the degree of instruction which each person so convicted has received, and all such other items of information in relation to such convicts and their offences as the Secretary of State shall require; which reports shall be made in such form as the said Secretary shall prescribe. And to enable such sheriffs to make the said returns, they shall be authorized, by themselves and their deputies, to make all necessary inquiries of the persons convicted, before or after trial, and of the keepers of prisons where such convicts may be confined, and of all other persons. For their services in the premises, as well as for collecting statistics relating to convictions in courts of special sessions, such sheriffs shall be allowed a reasonable compensation by the board of supervisors of their respective counties as a county charge.2

The information above required to be transmitted is usually obtained by the court from the convict at the time of his sentence.3

The act in relation to statements of convictions further declares that any sheriff, clerk or magistrate, who shall neglect or refuse to conform to the provisions above mentioned, shall forfeit the sum of twenty-five dollars for each case of neglect or refusal to the use of the people of this State.1

1 Laws 1867, ch. 604, § 3, vol. 2, p. 1630.

9 I., 4..

• Ante.
* Id., § 8

§ 161. DISTRICT ATTORNEY TO FILE MINUTES OF EVIDENCE.

It is made the duty of the district attorney, within thirty days after the close of any term of the court at which criminals are tried, to file in the county clerk's office full and correct minutes, or a copy thereof of the evidence taken on the trial of such criminals as are convicted at said term; and the county clerk is required to transmit the same to the Governor, upon his application.1

§162. ORDERS OF CONTINUANCE.

The several courts of oyer and terminer and jail delivery, may by order entered in their minutes, send all indictments found at any such court for offences, triable at the court of sessions of the same county, to such court of sessions, to be proceeded on and tried therein. And courts of sessions are required to send all indictments for offences not triable therein, to the next court of oyer and terminer and jail delivery, to be held in their respective counties, there to be determined according to law.3 Courts of sessions also have power, by an order to be entered in their minutes, to send all indictments for offences triable before them, against prisoners in jail and others, which shall not have been heard or determined, to the next court of oyer and terminer and jail delivery, to be held in their respective counties, to be there determined according to law.4

It is usual from day to day, during the sitting either of the courts of oyer and terminer or of sessions, as such court may be advised, to postpone the trial of any indictment pending and undetermined in such court, either to the next term of the same court, or from the court which may be in session, to the next court of sessions or oyer and terminer, as the case may happen to be, bearing the fact, however, in mind that no indictment should be sent to the next court of sessions, to be held in the county which it is not triable therein; and in ascertaining whether such indictment be triable or not in the sessions, reference must be had, of course, to the longest time of punishment which can be imposed upon a conviction for such offence. Upon the last day of the court of oyer and terminer, it is customary to enter a general

Laws 1860, ch. 135, p. 216.

* 2 R. S., 205, § 16.

2 R. S., 203, § 6. • 2 R. S., 209, § 7.

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