CHAPTER 870. AFFRAYS; RIOTS, ROUTS; UNLAWFUL ASSEMBLIES Ch. 870

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1 AFFRAYS; RIOTS, ROUTS; UNLAWFUL ASSEMBLIES Ch. 870 CHAPTER 870 AFFRAYS; RIOTS; ROUTS; UNLAWFUL ASSEMBLIES Punishment of affray Unlawful assemblies Riots and routs Punishment of affray.-all persons guilty of an affray or riot shall be punished by imprisonment not exceeding Lwelve months, or by fine not exceeding five hundred dollars. Hlstory.- 35, Feb. 10, 1832; RS 2406; GS 3239; RGS 6072; CGL Unlawful assemblies.-if three or more persons meet together to commit a breach of the peace, or to do any other unlawful act, ~ach of them shall be punished by imprisonment not exceeding six months, or by fine not exceeding five hundred dollars. 7l~~atory , RS 1892; GS 3240; RGS 5073; CGL ct , , Anarchy, communism, etc., unlawful assembly for purpose of Riots and routs.-if any persons unlawfully assembled demolish, pull down or destroy, or begin to demolish, pall down or destroy, any dwelling house or other building, or any ship or vessel, each of them shall be punished by imprisonment in the state prison not exceeding five years. Hlstory.- 7, sub-ch. 7, ch. 1637, 1868; RS 2408; 3241; RGS 5074; CGL Magistrate to disperse riotous assembly.-if any number of persons, whether armed or not, are unlawfully, riotously or tumultuously assembled in any city or town, the sheriff or his deputies, or aily constable or justice of the peace of the county, or the mayor, or any alderman of the said city or town, shall go among the persons so assembled, or as near to them as may be with safety, and shall in the name of the state command all the persons so assembled immediately and peaceably to disperse; and if such persons do not thereupon immediately and peaceably disperse, said officers shall command the assistance of all persons in seizing, arresting and securing such persons in custody; and if any person present being so commanded to aid and assist in seizing and securing such rioter or persons so unlawfully assembled, or in suppressing such riot or unlawful assembly, refuses or neglects to obey such command, or, when required by such officers to depart from GS Magistrate to disperse riotous assembly When killing excused Unauthorized military organizations. the place, refuses and neglects to do so, he shall be deemed one of the rioters or persons unlawfully assembled, and may be prosecuted and punished accordingly. Hlstory.- 1, 2, sub-ch. 7, ch. 1637, 1868; RS 2409; GS 3242; RGS 5075; CGL When killing excused.-if, by reason of the efforts made by any of said officers or by their direction to diapers~ such assembly, or to seize and secure the persons composing the same, who have refused to disperse, any such person or other person present is killed or wounded, the said officers and all persons acting by their order or under their direction, shall be held guiltless and fully justified in law; and if any of said officers or any person acting under or by their direction is killed or wounded, all persons so assembled and all other persons present who when commanded refused to aid and assist said officer shall be held answerable therefor. Hlstory.- 6, sub-ch. 7, ch. 1637, 1868; RS 2410; GS 3243; RGS 5076; CGL Unauthorized military organizations. -No body of men, other than the regularly organized land and naval militia of this state, the troops of the United States, and the students of regularly chartered educational institutions where military science is a prescribed part of the course of instruction, shall associate themselves together as a military organization for drill or parade in public with. firearms, in this state, without special license from the governor for each occasion, and application for such license must be approved by the mayor and aldermen of the cities and towns where such organizations may propose to parade. Each person unlawfully engaging in the formation of such military organization, or participating in such drill or parade, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than five dollars and not more than twenty-five dollars, and imprisoned not exceeding thirty days. Hlstory.- 15, ch. 1466, 1866; RS 2411; 10, ch. 5202, 1908; GS 3246; RGS 5077; CGL cf , Uniform, etc., not to be worn by penon not In military service. 2901

2 Ch. 871 DISTURBING RELIGIOUS AND OTHER ASSEMBLIES CHAPTER 871 DISTURBING RELIGIOUS AND OTHER ASSEMBLIES Disturbing schools and religious and other assemblies Indictments or informations for disturbing assembly Disturbing schools and religious and other assemblies.-whoever willfully interrupts or disturbs any school, or any assembly of people, met for the worship o.f God, or for any lawful purpose, shall be punished by fine not exceeding fifty dollars, or imprisonment in the county jail not exceeding sixty days. Hlatoey.- 19, 21, 22, sub-ch. 8, ch. 1637, 1868; RS 2627, 2629, 2630; GS 8647; 1, ch. 6719, 1907; RGS 6448; CGL Indictments or informations for disturbing assembly.-the several grand juries of this state in their respective counties may return indictments, or the several state attorneys of this state in their respective circuits may file information against all persons violating , and such indictments or informations, when filed with the clerk of the circuit court in the county where such offense is alleged to have been committed, shall be forthwith certified by him to some court in the county having jurisdiction to try and detennine such charge, and said court to which such indictment or information is certified shall proceed to try and determine such charge upon such indictment or information, the same as if affidavit had been made before such court chhrging the said offense. Hlstoey.- 2, 8, ch. 6719, 1907; RGS 6449; CGL cf , Form of Indictment or information. Ch. 906, Indictment and information Peddling at camp meeting.-wboever during the time of holding any camp or field meeting for religious purposes, and within one mile of the place of holding such meeting, hawks or peddles goods, wares, merchandise, or without permission from the authorities having charge of such meeting, establishes any tent or booth for vending of provisions or refreshments, or practices or engages in gaming or horse racing, or exhibits, or offers to exhibit, shows or plays, shall be punished by fine not exceeding twenty dollars for each offense; but a person having his usual and regular place of business within such limits is not hereby required to suspend his business. Hlstoey.- 20, sub-ch. 8, ch. 1637, 1868; RS 1628; GS 8648 ; RGS 6460; CGL Peddling at camp meeting Advertising; religious discrimination; public places Advertising; religious discrimination; public places.- (1) Except where the context clearly requires a different meaning, the following terms shall have for the purposes of this section the meaning respectively ascribed to them: (a) "Person" means any individual, partnership, association, corporation, or organized group of persons whether incorporated or not. (b) "Establishment" means any building or part thereof, including without being limited to public inns, hotels, motels, apartment hotels, any structure, enclosure, tract of land, and all improvements, appurtenances, and additions, bodies of water whether natural or artificial, and any other place of whatsoever nature to which the general public is or will be admitted, allowed or invited on payment of a fee, free of charge or otherwise. (2) No person. directly or indirectly, for himself or for another, shall publish, post, broadcast by any means, maintain, circularize, issue, display, transmit, or otherwise disseminate or place in any manner before the public with reference to an establishment any advertisement that the patronage of any person is not welcome, or is objectionable, or is not acceptable because of his religion. No person shall cause or solicit another person to violate this section. (3) This section shall not apply to any establishment which is private or limited to membership only; to any camp administered by any religious organization, group or sect, admission to which is based on religious belief or affiliation; or to any gathering, meeting or assembly held under the auspices of any religious organization, group or sect. ( 4) Any person or persons violating this section shall be guilty of a misdemeanor and shall be punished upon conviction thereof, by a fine of not more than $ or by imprisonment not exceeding ninety days, or by both such fine and imprisonment. mstor;r.-comp. 111, 2, ch ,

3 OFFENSES CONCERNING DEAD BODIES AND GRAVES Ch. 872 CHAPTER 872 OFFENSES CONCERNING DEAD BODIES AND GRAVES Dealing in dead bodies Cremating human bodies; limitation Disfiguring tomb Dealing in dead bodies.-whoever buys, sells or has in his possession for the purpose of buying or selling or trafficking in the dead body of any human being shall be punished by imprisonment not exceeding one year, or by fine not exceeding five hundred dollars; provided, however, that nothing contained in this section shall be construed to prohibit the obtaining, dissecting, using and disposing of dead bodies for the purpose of teaching or other appropriate university research by any medical school, dental school, school of nursing or other university research or teaching unit which is a part of a regularly established or chartered institution of higher learning under the laws of the state. Hlstory.- 26, sub-ch. 8, ch. 1637, 1868; RS 2625; GS 3545; RGS 5446; CGL 7589; am. 1, ch , Am. 1, ch , cf , Laying out highway, etc., over graveyard Disfiguring tomb.-whoever willfully destroys, mutilates, defact::s, injures or removes any tomb, monument, gravestone or other structure or thing placed or designed for a memorial of the dead, or any fence, rail- ing, curb or other thing intended for the pro tection or ornamentation of any tomb, monument, gravestone or other structure before mentioned, or for any enclosure for the burial of the dead, or willfully destroys, mutilates, removes, cuts, breaks or injures any tree, shrub or plant placed or being within any such enclosure, or wantonly and maliciously Q.isturbs the contents of a tomb or grave, shall be punished by imprisonment not exceeding one year, or by fine not exceeding five hundred dollars. Hlstory.- 27, sub-ch. 8, ch. 1637, 1868; RS 2626; GS 3546; RGS 5447; CGL Cremating human bodies; limita tion.- (1) It shall be unlawful for any person, firm or corporation to cremate any dead human body prior to the expiration of forty-eight hours after the death of such human body. (2) Anyone convicted for the violation of this section shall be punished by fine not exceeding five hundred dollars or by imprisonment in the county jail not exceeding six months. Hlstory.- 1, 2, ch ,

4 Ch. 876 CRIMINAL ANARCHY, COMMUNISM, ETC. CHAPTER 876 CRIMINAL ANARCHY, COMMUNISM, WEARING MASKS, HOODS, ETC Criminal anarchy, communism, etc., prohibited Criminal anarchy, communism, etc., defined and made a felony; penalty Unlawful assembly for purposes of anarchy, communism, etc Allowing unlawful assembly in building prohibited State employees; oath Discharged for refusal to execute Persons giving aid, advice, etc., to communist party Penalty for not discharging Scope of law False oath; penalty Public place defined Unlawful to wear hood, etc.; on street, etc Same; on public property Same; on property of another Same; demonstration or meeting Certain exemptions Burning or flaming cross; in public Criminal anarchy, communism, etc., prohibited.-criminal anarchy, criminal communism, criminal naziism, or criminal fascism are doctrines that existing form of constitutional government should be overthrown by force or violence or by any other unlawful means, or by assassination of officials of the government of the United States or of the several states. The advocacy of such doctrines either by word of mouth or writing or the promotion of such doctrines independently or in collaboration with or under the guidance of officials of a foreign state or an international revolutionary party or group is a felony. Hlstory.- 1, ch , c:t , , Unlawful assemblies generally Criminal anarchy, communism, etc., defined and made a felony; penalty.-any person who- (1) By word of mouth or writing advocates, advises, or teaches the duty, necessity or propriety of overthrowing or overturning existing forms of constitutional government by force or violence; of disobeying or sabotaging or hindering the carrying out of the laws, orders, or decrees of duly constituted civil, naval or military authorities; or by the assassination of officials of the government of the United States or of the state, or by any unlawful means or under the guidance of or in collaboration with officials, agents or representatives of a foreign state or an international revolutionary party or group; or (2) Prints, publishes, edits, issues or knowingly circulates, sells, distributes, or publicly displays any book, paper, document, or written or printed matter in any form, containing or advocating, advising or teaching the doctrine that constitutional government should be overthrown by force, violence, or any unlawful means; or (3) Openly, willfully and deliberately urges, advocates. or justifies by word of mouth or writ Same; on property of another Exhibits that intimidate Wearing mask and placing exhibit to intimidate Penalty Definitions Subversive activities unlawful; penalty Membership in subversive organization; penalty Persons convicted under , , not to hold office or vote Unlawful for subversive organizations to exist or function Enforcement of Grand jury to investigate violations of Subversive person prohibited from holding office or employment Subversive person not to be candidate for election Short title; ing the assassination or unlawful killing or assaulting of any official of the government of the United States or of this state because of his official character, or any other crime, with intent to teach, spread, or advocate the propriety of the doctrines of criminal anarchy, criminal communism, criminal naziism or criminal fascism; or ( 4) Organizes or helps to organize or becomes a member of any society, group or assembly of persons formed to teach or advocate such doctrines; or (5) Becomes a member of, associated with or promotes the interest of any criminal anarchistic, communistic, nazi-istic or fascistic organization, or helps to organize or becomes a member of or affiliated with any subsidiary organization or associated group of persons who advocates, teaches, or advises the principles of criminal anarchy, criminal communism, criminal naziism or criminal fascism; Shall be guilty of a felony and upon conviction thereof be subject to imprisonment for not more than ten years or a fine of not more than ten thousand dollars, or both. Hlstory.- 2, ch , Unlawful assembly for purposes of anarchy, communism, etc.-whenever two or more persons assemble for the purpose of promoting, advocating or teaching the doctrine of criminal anarchy, criminal communism, criminal naziism or criminal fascism, as defined in of this law, such an assembly or organization is unlawful, and every person voluntarily participating therein by his presence, aid or instigation shall be guilty of a felony and upon conviction thereof shall be subject to imprisonment for not more than ten years or a fine of not more than ten thousand dollars, or both. Hlstory.- 3, ch , Allowing unlawful assembly in building prohibited.-no owner, agent, superintend-

5 ent, janitor, caretaker or occupant of any place, building or room, shall willfully and knowingly permit therein any assemblage of persons prohibited by ,.and if such person after notification that the premises are so used, permits such use to be continued, he shall be guilty of a misdemeanor and upon conviction thereof subject to imprisonment for not more than one year or fine of not more than one thousand dollars, or both. Hlstor;y.- 4, ch , State employees; oath.-all persons who now or hereafter are employed by or who now or hereafter are on the payroll of the state, or any of its departments and agencies, subdivisions, counties, cities, school boards and districts of the free public school system of the state or counties, or institutions of higher learning and all candidates for public office, are hereby required to t ake an oath before any person duly authorized to take acknowledgments of instruments for public record in the state in the following form: I,..., a citizen of the State of Florida and of the United States of America, and being employed by or an officer of... and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida; that I am not a member of the Communist Party; that I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party; that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence; that I am not a member of any organization or party which believes in or teaches, directly or indirectly, the overthrow of the Government of the United States or of Florida by force or violence. And said oath shall be filed with the records of the governing official or employing governmental agency prior to the approval of any voucher for the payment of salary, expenses, or other compensation. Hlstory.-Comp. 1, ch , cf , Oaths, requirements Discharged for refusal to execute. If any person required by to take the oath herein provided for fails to execute the same, the governing authority under which such person is employed shall cause said person to be immediately discharged, and his name removed from the payroll, and such person shall not be permitted to receive any payment as an employee or as an officer where he or she was serving. Hlstory.-Comp. 2, ch , CRIMINAL ANARCHY, COMMUNISM, ETC. Ch Persons giving aid, advice, etc., to communist party.-any person having taken the oath provided for in and who thereafter should become a member of the communist party or who lends aid, support, advice, counsel or influence to the communist party or who expresses any belief in or advocates the overthrow of the government of the United States or of the state by violence or force or thereafter becomes a member of an organization or party which believes in or teaches directly or indirectly the overthrow of the government of the United States or of the state by force or violence, shall immediately be discharged from his employment by the employing authority and his name shall be removed from the payroll, and thereafter such person shall not be permitted to receive any payment as an employee or an officer where he or she then was serving. Any person seeking to qualify for public office who fails or refuses to file the oath required by this act shall be held to have failed to qualify as a candidate for public office, and the name of such person shall not be printed on the ballot as a qualified candidate. Hlstory.-Comp. 3, ch , Penalty for not discharging.-any governing authority or person, under whom any employee is serving or by whom employed who shall knowingly or carelessly permit any such employee to continue in employment after failing to comply with the provisions of , shall be guilty of a misdemeanor and shall be punished by a fine not exceeding five hundred dollars or by imprisonment not exceeding six months or by both fine and imprisonment. H!story.-Comp. 4, ch , Scope of law.- (1) The provisions of shall apply to all employees and elected officers of the state, including the Governor and constitutional officers and all employees and elected officers of all cities, towns, counties and political subdivisions, including the educational system. (2) This act shall take precedence over all laws relating to merit, and of civil service law. Hlstory.-Comp. 5, 7, ch , False oath; penalty.-if any person required by the provisions of to execute the oath herein required executes such oath, and it is subsequently proven that at the time of the execution of said oath said individual was guilty of making a false statement in said oath, he shall be guilty of perjury, and shall be prosecuted and punished for the crime of perjury in the event of conviction. Hlstory.-Comp. 6, ch , Public place defined.-for the purpose of the term "public place" includes all walks, alleys, streets, boulevards, avenues, lanes, roads, highways or other ways or thoroughfares dedicated to public use or owned or maintained by public authority; all grounds and buildings owned, leased by, operated or maintained by public authority. History.-Comp. 1, ch , 1951.

6 Ch. 876 CRIMINAL ANARCHY, COMMUNISM, ETC Unlawful to wear hood, etc.; on street, etc.-no person or persons over sixteen years of age shall, while wearing any mask, hood or device whereby any portion of the face is so hidden, concealed or covered as to conceal the identity of the wearer, enter upon, or be or appear upon any lane, walk, alley, street, road, highway or other public way in this state. Hlstory.-Comp. 2. ch , Same; on public property.-no person or persons shall in this state, while wearing any mask, hood or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, enter upon, or be, or appear upon or within the public property of any municipality or county of the state. History.-Comp. 3, ch , Same; on property of another.-no person or persons over sixteen years of age shall, while wearing a mask, hood or device whereby any portion of the face is so hidden, concealed or covered as to conceal the identity of the wearer, demand entrance or admission or enter or come upon or into the premises, enclosure or house of any other person in any municipality or county of this state. Hlstory.-Comp. 4, ch , Same; demonstration or meeting. N o person or persons over sixteen years of age, shall, while wearing a mask, hood, or device whereby any portion of the face is so hidden, concealed or covered as to conceal the identity of the wearer, hold any manner of meeting, make any demonstration upon the private property of another unless such person or persons shall have first obtained from the owner or occupier of the property his or her written permission to so do. History.-Comp. 5, ch , Certain exemptions.-the following are exempted from the provisions of : (1) Any person or persons wearing traditional holiday costumes; (2) Any person or persons engaged in trades and employment where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade or profession; (3) Any person or persons using masks in theatrical productions including use in Gasparilla celebrations and masquerade balls; (4) Persons wearing gas masks prescribed in civil defense drills and exercises, or emergencies. Hlstory.-Comp. 6, ch , Burning or flaming cross; in public. -It shall be unlawful for any person or persons to place or cause to be placed in a public place in the state a burning or flaming cross or any manner of exhibit in which a burning or flaming cross, real or simulated, is a whole or a part. Hlstory.-Comp. 7, ch , Same; on property of another.-it shall be unlawful for any person or persons to place or cause to be placed on the property of another in the state a burning or flaming cross or any manner of exhibit in which a burning or flaming cross, real or simulated, is a whole or part without first obtaining written permission of the owner or occupier of the premises to so do. History.-Comp. 8, ch , Exhibits that intimidate.- It shall be unlawful for any person or persons to place or cause to be placed anywhere in the state, any exhibit of any kind whatsoever with the intention of intimidating any person or persons, to prevent them from doing any act which is lawful to cause them to do any act which is unlawful. Hlstory.-Comp. 9, ch , Wearing mask and placing exhibit to intimidate.-it shall be unlawful for any person or persons while wearing a mask or any device whereby the face is so covered as to conceal the identity of the wearer, to place or to cause to be placed at, on or in any place any exhibit of any kind whatsoever. Hlstory.-Comp. 10, ch , Penalty.-Any person or persons violating shall be guilty of a misdemeanor and shall be punished upon conviction thereof, by a fine of not more than five hundred dollars, or by imprisonment not exceeding ninety days, or by both such fine and imprisonment. History.-Comp. 11, ch , Definitions.- As used in : (1) "Organizations" means an organization, corporation, company, partnership, association, trust, foundation, fund, club, society, committee, political party, or any group of persons, whether or not incorporated, permanently, or temporarily associated together for joint action or advancement of views on any subject or subjects. (2) "Subversive organization" means any organization which engages in or advocates, abets, advises, or teaches, or a purpose of which is to engage in or advocate, abet, advise, or teach activities intended to overthrow, destroy, or to assist in the overthrow, destruction of, the constitutional form of the government of the United States, the constitution or government of the state, or of any political subdivision of either of them, by revolution, force, violence or other unlawful means. (3) "Foreign subversive organization" means any organization, directed, dominated or controlled directly or indirectly by a foreign government which engages in or advocates, abets, advises, or teaches, or a purpose of which is to engage in or to advocate, abet, advise, or teach, activities intended to overthrow, destroy, or to assist in the overthrow, destruction of the constitutional form of the government of the United States, or of this state. or of any

7 political subdivision of either of them, and to establish in place thereof any form of government the direction and control of which is to be vested in, or exercised by or under, the domination or control of any foreign government, organization, or individual. ( 4) "Foreign government" means the government of any country, nation or group of nations other than the government of the United States or of one of the states thereof. (5) "Subversive person" means any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy, or to assist in the overthrow, destruction of the constitutional form of the government of the United States, or of this state, or any political subdivision of either of them, by revolution, force, violence or other unlawful means; or who is a member of a subversive organization or a foreign subversive organization. mstory.-comp. 1, ch , Subversive activities unlawful; pen alty.- (1) It shall be a felony for any person knowingly and willfully to: (a) Commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy, to assist the overthrow, destruction of, the constitutional form of the government of the United States, or of the state, or any political subdivision of either of them, by revolution, force, violence, or other unlawful means; or (b) Advocate, abet, advise, or teach by any means any person to commit, attempt to commit, or assist in the commission of any such act under such circumstances as to constitute a clear and present danger to the security of the United States, or of this state, or of any political subdivision of either of them; or (c) Conspire with one or more persons to commit any such act; or (d) Assist in the formation or participate in the management or to contribute to the support of any subversive organization or foreign subversive organization knowing said organization to be a subversive organization or a foreign subversive organization; or (e) Destroy any books, records, or files, or secretes any funds in this State of a subversive organization or a foreign subversive organization, knowing said organization to be such. (2) Any person who violates any of the provisions of this section shall be fined not more than twenty thousand dollars, or imprisoned in the penitentiary for not less than one year nor more than twenty years, or both. Blstory.-Comp. 2, eh , CRIMINAL ANARCHY, COMMUNISM, ETC. Ch Membership in subversive organization; penalty.-it shall be a felony for any person after the effective date of this law* to become, or after July 1, 1953, to remain a member of a subversive organization or a foreign sub- versive organization knowing said organization. to be a subversive organization or foreign subversive organization. Any person convicted of violating this section shall be fined not more than five thousand dollars, or imprisoned in the penitentiary for not less than one year nor more than five years, or both. Bistory.-Comp. 3, ch , Effective date is August 5, Persons convicted under , not to hold office or vote.-any person convicted by a court of competent jurisdiction of violating any of the provisions of , , in addition to all other penalties therein provided, shall from the date of such conviction be barred from: (1) Holding any office, elective or ap}!lointive, or any other position of profit or trust in or employment by the government of the state or of any agency thereof or of any county, municipal corporation or other political subdivision of said state; (2) Filing or offering for election to any public office in the state; or (3) Voting in any election held in this state. History.-Comp. 4. ch , Unlawful for subversive organizations to exist or function.-it shall be unlawful for any subversive organization or foreign subversive organization to exist or function in the state and any organization which by a court of competent jurisdiction is found to have violated the provisions of this section shall be dissolved and if it be a corporation organized and existing under the laws of the state a finding by a court of competent jurisdiction that it has violated the provisions of this section shall constitute legal cause for forfeiture of its charter and its charter shall be forfeited, and all funds, books, records and files of every kind and all other property of any organization found to have violated the provisions of this section shall be seized by and for the state, the funds to be deposited in the state treasury and the books r ecords, files and other property to be turned over to the attorney general of Florida. History.-Comp. 5, ch , Enforcement of The attorney general of the state, all prosecuting attorneys, the secretary of state, and all law enforcement officers of this state shall each be charged with the duty of enforcing the provisions of History.-Comp. 6, ch , Grand jury to investigate violations of The judge of any court exercising general criminal jurisdiction when in his discretion it appears appropriate, or when informed by the attorney general that there is information or evidence of the character described in to be considered by the grand

8 Ch. 876 CRIMINAL ANARCHY, COMMUNISM, ETC. jury, shall charge the grand jury to inquire into violations of for the purpose of proper action, and further to inquire generally into the purposes, processes and activities and any other matters affecting communism or any related or other subversive organizations, associations, groups or persons. Wstor7.--Comp. 7, ch , Subversive person prohibited from holding office or employment.-no subversive person, as defined in , shall after conviction be eligible for employment in, or appointment to any office, or any position of trust or profit in the government of, or in the administration of the business of this state, or of any county, municipality, or other political subdivision of this state. mstory.--comp. 8, ch , Subversive person not to be candidate for election.-n o person shall become a candidate nor shall be certified by any political party as a candidate for election to any public office created by the constitution or laws of this state if he has ever been tried and convicted as a subversive person as defined in Histor7.-Comp. 9. ch , Short title; Sections may be cited as the subversive activities law. Historf.--Comp. 10, ch ,

9 Judicial officers to be committing magistrates When warrant of arrest to be issued Form and contents of warrant Direction and execution of warrant Procedure when warrant defective Duty of officer after arresting with warrant Admission to bail when arrest occurs in another county Issue of warrant when offense triable in another county When summons shall be issued How summons served Effect of not answering summons Summons against corporation Service of summons upon corporation Effect of failure by corporation to answer summons Judicial officers to be committing magistrates.-all judicial officers of this state shall be conservators of the peace and committing magistrates, and may issue warrants against persons charged on oath with violating the criminal laws of the state, and may commit offenders to jail or recognize them to appear before the proper court at the next ensuing term thereof to answer the charge, or may discharge them from custody, according to the circumstances of the case and may require sureties of the peace when the same has been violated or threatened. When a complaint is made to a magistrate that an offense has been committed within his jurisdiction, he shall examine on oath the complainant and any witnesses he may produce. Hlstor;,-.- 1, ch , 1939; CGL 1940 Supp. 8663(1). cf , Parent or guardian to be notified before trial of offense against minor When warrant of arrest to be issued. -A warrant may be issued, for the anest of the person complained against if the magistrate, from the examination of the complainant and the other witnesses, if any, has reasonable ground to believe that any offense was committed within his jurisdiction and that the person against whom the complaint was made committed it; provided, however, that a warrant may be issued by said magistrate for the arrest of the person complained against, upon presentation to him of affidavits sworn to by the complaining witness or witnesses before the prosecuting attorney, provided such prose- TITLE XLV CRIMINAL PROCEDURE CHAPTER 901 ARRESTS When arrest by officer without warrant is lawful Method of arrest by officer by virtue of warrant Method of arrest by officer without warrant Officer may summon assistance Right of officer to break into building Right to break into building in order to effect release of person making arrest detained therein Search of person arrested; admission in evidence of property found Arrest after escape or rescue Duty of officer after arrest without warrant Right of attorney to visit person arrested. cuting attorney is authorized to administer oaths as a notary public or otherwise. Hlstory.- 2, ch , 1939; CGL 1940 Supp. 8663(2) Form and contents of warrant.-the warrant of arrest shall: (1) Be in writing and in the name of the state; (2) Set forth substantially the nature of the offense; (3) Command that the person against whom the complaint was made be arrested and brought before the magistrate issuing the warrant or, if he be absent or unable to act, before the nearest or most accessible magistrate in the same county; ( 4) Specify the name of the person to be arrested or, if his name is unknown to the magistrate, designate such person by any name or description by which he can be identified with reasonable certainty; (5) State the date when issued and the county and justice district where issued; (6) Be signed by the magistrate with the title of his office; and (7) In all offenses bailable as of right be indorsed with the amount of bail and the return day on the back of the warrant. Hlstory.- 3, ch , 1939; CGL 1940 Supp, 8663(3) Direction and execution of warrant. -The warrant shall be directed to all and singular the sheriffs and constables of the state. It shall be executed only by a sheriff or constable of the county in which the arrest is made, unless the arrest is made in 2909

10 Ch. ~01 ARRESTS hot pursuit, in which event it may be executed by any sheriff or constable who is advised of the existence of said warrant. An arrest may be made on any day and at any time of the day or night. History.- 4, ch , 1939; CGL 1940 Supp. 8663(4). c! , Trespasser may be arrested on Suaday without warrant.! Procedure when warrant defective. -(1) No warrant of arrest shall be quashed or abated nor shall any person in custody for an offense be discharged from custody because of any informality in the warrant, but the warrant may be amended, so as to remedy any informality. (2) If during the preliminary examination of any person who has been arrested for the -commission of an offense it appears to the magistrate conducting the examination that the warrant of arrest does not properly name or describe the person arrested or does not properly set forth the nature of the offense for which he was arrested or that although not guilty of the offense specified in the warrant he is guilty of some other offense, the magistrate shall not discharge such person, but shall forthwith issue a new warrant for his arrest upon proper affidavit being made. Hlstory.- 5, ch , 1939; CGL 1940 Supp. 8663(5) Duty of officer after arresting with warrant.-when the arrest by virtue of a warrant occurs in the county whe1 e the alleged <>ffense was committed and wher a the warrant was issued, the officer making the arrest shall without unnecessary delay take the person arrested before the magistrate who issued the warrant or, if that magistrate is absent or unable to act, before the nearest or most accessible magistrate in the same county. History.- 6, ch , 1939; CGL 1940 Supp. 8663(6) Admission to bail when arrest occurs in another county.-(1) When the arrest by virtue of a warrant occurs in a county other than that in which the alleged offense was committed and the warrant issued, if the person arrested is bailable as of right in respect of the offense set forth in the warrant, the officer making the arrest shall, upon being so reauested by the person arrested, take him before a magistrate or other official of such county having authority to admit to bail for such offense, who shall admit him to bail for his appearance before the magistrate who issued the warrant. (2) If the person arrested is not bailable as of right in respect of the offense set forth in the warrant, or if, on the adtr.ission to bail of the person arrested, bail is not forthwith given, the officer who made the arrest or the officer having the warrant, shall take the person arrested before the magistrate who issued the warrant. History.- 7, ch , 1939; CGL 1940 Supp. 8663(7) Issue of warrant when offense triable in another county.-(1) When a complaint is made before a magistrate of the commission of an offense which is punishable by death or imprisonment for more tnan five years and is triable in another county of the state, but it appears that the person against whom the complaint is made is in the county where the complaint is made, the sam(; proceedings for the issuing of a warrant shall be had as prescribed in this chapter, except that the warrant shall require the person, against whom the complaint is made, to be taken before a named or otherwise designated magistrate of the county in which the offense 1s triable. (2) If the person arrested is bailable as of right in respect of the offense set forth in the wanant, the officer making the arrest, shall, upon being so requested by the person arrested, take him before a magistrate or other official, having authority to admit to bail for such offense, of the county in which the arrest is made, who shall admit him to bail for his appearance before the magistrate named or otherwise designated in the warrant. (3) If the person arrested is not bailable as of right in respect of the offense set forth in the warrant, or if, on the admission to bail of the person arrested, bail is not given, the person arrested shall be taken before the magistrate named or otherise designated in the warrant. History.- 8, cb , 1939; CGL 1940 Supp. 8663(8) When summons shall be issued.-(1) Where the complaint is for the commission of an offense which the magistrate is empowered to try summarily he shall issue a summons instead of a warrant of arrest, unless he has reasonable ground to believe tha.t the person against whom the complaint was made will not appear upon a summons, in which case he shall issue a warrant of arrest. (2) Where the complaint is for a misdemeanor, which the magistrate is not empowered to try summarily, he shall issue a summons instead of a warrant of arrest, if he has reasonable ground to believe that the person against whom the complaint was made will appear upon a summons. (3) The summons shall set iorth substantially the nature of the offense, and shall command the person against whom the complaint was made to appear before the magistrate issuing \he summons at a ti.me and place stated therein. Hlstory.- 9, ch , 1939; CGL 1940 Supp. 8663(9) How summons served.-the summons may be served in the same manner as the summons in a civil action. Hlstory.- 10, ch , 1939; CGL 1940 Supp. 8663(10). cf , Service of process in civil action Effect of not answering summons. If the person fails, without good cause, to appear as commanded by the summons, he shall be considered in contempt of cvurt, and may be punished by a fine of not more than twenty dollars. Upon such failure to appear the magistrate shall issue a warrant of arrest. If after issuing a summons the magistrate be- 2910

11 comes satisfied that the person summoned will not appear as commanded by the summons he may at once issue a warrant of arrest. Hlstory.- 11, ch , 1939; CGL 1940 Supp. 8663(11) Summons against corporation.-upon complaint against a corporation for the commission of an offense, the magistrate before whom the complaint is made shall issue a summons, which shall recite substantially the nature of the offense and shall command the corporation to appear before him at a place stated therein. Hlstor:y.- 12, ch , 1939; CGL 1940 Supp. 8668(12) Service of summons upon corporation.-the summons for the appearance of a corporation may be served in the manner provided for service upon a corporation in a civil action. Hlstory.- 13, ch , 1939; CGL 1940 Supp. 8663(18) Effect of failure by corporation to answer summons.-if, after being sutr.moned, the corporation does not appear, a plea of not guilty shall be entered by the magistrate if he is empowered to try the offense for which the summons was issued, and he shall proceed to trial and judgment without further process. If the magistrate is not empowered to try the offense he shall proceed as though the corporation had appeared. Hlstor:y.- 14, ch , 1939; CGL 1940 Supp. 8668(14). cf , Failure of a corporation to appear When arrest by officer without warrant is lawful.-a peace officer may without warrant arrest a person: (1) When the person to be arrested has committed a felony or misdemeanor or violation of a municipal ordinance in his presence. In the case of such arrest for a misdemeanor or violation of a municipal ordinance, the arrest shall be made immediately or on fresh pursuit. (2) When a felony has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it. (3) When he has reasonable ground to believe that a felony has been or is being committed and reasonable ground to believe that the person to be arrested has committed or is committing it. ( 4) When a warrant has been issued charging any criminal offense and has been placed in the hands of any peace officer for execution. Hlstor:y.- 15, ch , 1989; CGL 1940 Supp. 8663(15); e.m. 1, ch , cf , Cruelty to children; arrest without warrant , Cruelty to animals; arrest without warrant , Arresting vagrant without warrant , Trespasser may be arrested without warrant Method of arrest by officer by virtue of warrant.-when making an arrest by virtue of a warrant the officer shall inform the person to be arrested of the cause of arr\jst and of the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity so to inform him, or when the giving of such information will imperil the arrest. The officer need not ARRESTS Ch have the warrant in his possession at the time of the arrest, but after the arrest, if the person arrested so requests, the warrant shall be shown to him as soon as practicable. Hlstor:y.- 16, ch , 1939; CGL 1940 Supp. 8663(18) Method of arrest by officer without warrant.-when making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the person to be arrested is then engaged in the commission of an offense, or is pursued immediately after its commission or after an escape, or flees or forcibly resists before the officer has opportunity so to inform him, or unless the giving of such information will imperil the arrest. Hlstory.- 17, ch , 1939; CGL 1940 Supp. 8663(17) Officer may summon assistance.-any officer making a lawful arrest may orally summon as many persons as he deems necessary to aid him in making the arrest. Every person when so requested by an officer shall aid him in making such arrest. Hlstory.- 18, ch , 1939; CGL 1940 Supp. 8663(18). cf , Refusing to assist prison officers in arresting escaped convicts , Neglect or refusal to aid peace officers Right of officer to break into building.-(1) An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such arrest for a felony without a warrant, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance after he has announced his authority and purpose. (2) Whenever an officer has entered a building in accordance with the provisions herein, he may break open a door or window of the building, if detained therein, when necessary for the purpose of liberating himself. (3) The sheriff, deputy sheriff, city marshal, constable, or police officer, when any of the implements, devices, or apparatus commonly used for gambling purposes are found in any house, room, booth or other place used for the purpose of gambling, shall seize the same and hold them subject to the discretion of the court, to be used as evidence and afterwards the same shall be publicly destroyed in the presence of witnesses under order of the court to that effect. Hlstory.- 19, ch , 1939; CGL 1940 Supp. 8663(19). cf , Finding of gambling Implements prima facie evidence of gambling Right to break into building in order to effect release of person making arrest detained therein.-a peace officer or any deputized person, may break open a door or window of any building when necessary for the purpose of liberating a person who entered the bui1ding for the purpose of making an arrest. Hlstory.- 20, ch , 1939; CGL 1940 Supp. 8663(20) Search of person arrested; admission in evidence of property found.-(1) When any sheriff, deputy sheriff, or other

12 Ch. 901 ARRESTS police officer in this state shall lawfully arrest any person, the officer making such arrest, or his assistant, may search the person so arrested, and if such search reveals the violation of any law, the officer shall hold such person upon a charge of violating the law, the violation of which has been so revealed, and anything found on such person or in his possession which tends to show the guilt of such person of the violation of law shall be admitted in evidence upon a trial in which such violation is charged, and such violation shall be deemed to be one committed in the presence of the officer. (2) When any sheriff, deputy sheriff, or other police officer of this state, shall lawfully arrest any person for the violation of the road or speed laws, or for reckless driving, or driving while drunk or intoxicated, and shall find upon making such arrest that such person has unlawfully in his possession or control, concealed weapons, intoxicating liquors or stolen or embezzled property, contrary to law, it shall be deemed to be a violation of the law committed in the presence of the officer so making the arrest, and the officer shall immediately take such person before a magistrate, and upon affidavit, charge such person w!th the commi::;sion of the offense so committed in the presence of the officer, and such person shall thereafter be dealt with as for the commission of such offense. The officer making the arrest, and thereupon finding such person engaged in the violation of the law, may immediately seize all evidence of &uch violation and give to the person so arrested and so found violating the law of this state an itemized inventory and receipt for the articles seized to be used as evidence, and hold the same to be used at the trial of such person for the violation of the law. The articles so seized shall be deemed to have been seized from a person in the act of violating the law in the presence of the officer making the arrest, and shall be admitted in evidence; provided, the possession of such articles shows or tends to show the person arrested to be guilty of the violation of the law. Hlstory.- 21, ch , 1939; CGL 1940 Supp. 8663(21) Arrest after escape or rescue.-if a person lawfully arrested escapes or is rescued, the person from whose custody he escapes or was rescued or any other officer may immediately pursue and retake him without a warrant at any time and in any place within the state. Hlstory.- 22, ch , 1939; CGL 1940 Supp. 8663(22) Duty of officer after arrest without warrant.-an officer who has arrested a person without a warrant, shall without unnecessary delay take the person arrested before the nearest or most accessible magistrate in the county in which the arrest occurs, having jurisdiction, and shall make before the magistrate a complaint, which shall set forth the facts showing the offense for which the person was arrested; or, if that magistrate is absent or unable to act, before the nearest or most accessible magistrate in the same county. Hlstory.- 23, ch , 1939; CGL 1940 Supp. 8663(23) Right of attorney to visit person arrested.-any attorney at law entitled to practice in the courts of this state shall, at the request of the person arrested or of some one acting in his behalf, be permitted, forthwith upon his request, to visit the person arrested and to interview him privately. Hlstory.- 24, ch , 1939; CGL 1940 Supp. 8663(24). 2912

13 Duty of magistrate Waiver of examination Sending for counsel Magistrate to proceed with examination unless waived Postponement of examination Bail after postponement Summoning of witnesses Presence of defendant and cross-examination of witnesses Examination of witnesses for defendant Exclusion and separation of witnesses. PRELIMINARY EXAMINATION Ch. 902 CHAPTER 902 PRELIMINARY EXAMINATION Duty of magistrate.-when the defendant is brought before the magistrate upon an arrest, either with or without a warrant, on a charge of having committed an offense which the magistrate is not empowered to try and determine, the magistrate shall immediately inform him: (1) Of the charge against him, (2) Of his right to the aid of counsel during the preliminary examination, (3) Of his right to waive such examination, and ( 4) Of his right to refuse to testify, and also caution him that in the event he does testify, anything which he says may be used against him in a subsequent proceeding. Hlotory.- 25, ch , 1939; CGL 1940 Supp. 8663(25). cf , Accused in custody under Capias Waiver of examination.-(!) The defendant may waive a preliminary examination. If he does waive preliminary examination, the magistrate shall hold him to answer and shall either admit him to bail or commit him to custody. (2) Notwithstanding a waiver of examination by the defendant, the magistrate, on the demand of the prosecuting attorney, shall examine the witnesses for the state and have their testimony reduced to writing or taken in shorthand by a stenographer. After hearing the testimony, if it appears that there is not probable cause to believe the defendant guilty of any offense, the magistrate shall order that he be discharged. Hlstory.- 26, ch , 1939; CGL 1940 Supp. 8663(26) Sending for counsel.-the magistrate shall allow the defendant a reasonable time to send for counsel and shall, if necessary, postpone the examination for that purpose. He shall also, upon request of the uo;!fendant, require an officer to communicate a mesbage to such counsel in the county as the defendant may name. The officer shah with diligence and without cost perform that duty. Hlstory.- 27, ch , 1939; CGL 1940 Supp. 8663(27) Magistrate to proceed with examination unless waived.-(1) If the defendant does not request the aid of counsel, the magistrate shall immediately proceed to examine the case unless the defendant waives examination. (2) If the defendant requests the aid of counsel the magistrate shall, immediately after Testimony of witnesses When deposition admissible at trial When defendant to be discharged When defendant to be held to answer; when to be admitted to bail or committed Undertaking by witness When further security may be required Procedure when witness does not give security Transmission of papers by magistrate When prosecutor liable for costs. the appearance of counsel, or, after waiting a reasonable time therefor, if none appears, proceed to examine the case unless the defendant waives examination. Hiotory.- 28, ch , 1939; CGL 1940 Supp. 8663(28) Postponement of examination.-the magistrate may for good cause postpone the examination. If no postponement is had, the examination shall be completed at one session. No postponement shall be for more than two days, nor shall the postponements in all e~ceed six days, except for good cause. Hiotory.- 29, ch , 1939; CGL 1940 Supp. 8663(29) Bail after postponement.-where a postponement is had, unless tht: defendant is already admitted to bail, the magistrate, if the defendant is bailable as of right and by him, shall admit him to bail for his appearance at the time to which the examination is postponed. If the defendant is not admitted to bail by the magistrate or if bail is not furnished, the magistrate shall commit him to custody for further examination of the case. Hlotory.- 30, ch , 1939; CGL 1940 Supp. 8663(30) Summoning of witnesses.-the magistrate shall issue such process as may be necessary to secure attendance of witnesses within the state, for the state or the defendant. History.- 31, ch , 1939; CGL 1940 Supp. 8663(31). cf , Witnesses, recognizance. 11, Decl. of rights, const Presence of defendant and crossexamination of witnesses.-all witnesses shall be examined in the presence of the defendant and may be cross-examined. Hlotory.- 32, ch , 1399; CGL 1940 Supp. 8663(32) Examination of witnesses for defendant.-at the conclusion of the testimony for the prosecution the defendant shall, if he so elects, be sworn and testify i:a hi.s own behalf, and shall in such cases be warned that anything he may say can be used against him at a subsequent trial, and be subject to examination as other witnesses, and whether he testifies or not any witness produced by him shall be sworn and examined. Hlstory.- 33, ch , 1939; CGL 1940 Supp. 8663(33) Exclusion and separation of witnesses.-prior to the examination of any witness in the cause, the magistrate may and on request of the defendant shall exclude all other

14 {;h. 902 PRELIMINARY EXAMINATION witnesses. He may also cause the witnesses to be kept separate and to be prevented froxn coxnxnunicating with each other until all are exaxnined. Hlstory.- 34, ch , 1939; CGL 1940 Supp. 8663(34) Testimony of witnesses.-at the request of the prosecuting attorney the testixnony of the witnesses and of the defendant, if he testifies, shall either be reduced to writing by the magistrate, or under his dil-ection, or be taken in shorthand by a stenographer and transcribed. The magistrate shall give the defendant an opportunity to sign his deposition. If the testimony, or any part thereof, is reduced to writing at the request of the prosecuting attorney, a copy of such testixnony, or of the part thereof which has been reduced to writing, shall be furnished free of cost to defendant or his counsel. Hlstory.- 36, ch , 1939; CGL 1940 Supp. 8663(35) When deposition admissible at trial. -In case the defendant testified, his deposition, if signed by hixn, shall be admissible in evidence against hixn at the trial wjthout further authentication. Nothing herein contained shall prevent the state from giving evidence at the trial of any admission or confession or other statexnent of the defendant, made at any time, which by law is adxnissible as evidence against such person. Hlstory.- 36, ch , 1939; CGL 1940 Supp. 8663(36) When defendant to be discharged. -After hearing the evidence, if it appears either that an offense has not been comxnitted or that, if coxnmitted, there is not probable cause to believe the defendant guilty thereof, the xnagistrate shall order that he be dis charged. Hlstory.- 37, ch , 1939; CGL 1940 Supp. 8663(37) When defendant to be held to answer; when to be admitted to bail or committed.-if it appears that any offense has been coxnmitted and that there is probable cause to believe the defendant guilty thereof, the xnagistrate shall hold hixn to answer. If the defendant is bailable as of right by the xnagistrate, he shall be adxnitted to bail. If he is not adxnitted to bail or if sufficient bail is not furnished, the xnagistrate ~:~hall coxnxnit hixn to custody. History.- 38, ch , 1939; CGL 1940 Supp. 8663(38) Undertaking by witness.-if the defendant is held to answer on any charge of xnurder, rape, robbery, arson or kidnapping, the xnagistrate xnay require each xnaterial witness for the state and each xnateriai witness for the defendant, if so requested by hixn, to enter into a written recognizance to appear and testify at the trial of the cause or to forfeit such suxn as the xnagistrate may fix. History.- 39, ch , 1939; CGL 1940 Supp. 8663(39) When further security may be required.-when the xnagistrate froxn the proceedings had before hixn or froxn testixnony on 2914 oath has reasonable ground to believe that any witness who has entered into such recognizance will not appear and testify unle~>s further security is required, he may order the witness to give further security for his appearance, by entering into a written undertaking with such sureties and in such suxn as the magistrate may deem proper. History.- 40, ch , 1939; CGL 1940 Supp. 8663(40) Procedure when witness does not give security.-(1) If a witness required to enter into an undertaking or recognizance to appear to testify, either with or without security, refuses compliance with an order for that purpose, the magistrate shall commit hixn to custody until he complies or is legally discharged. (2) If the magistrate requires the witness to give security for his appearance, and the witness is unable to give such security, he xnay xnove the court having ultixnate jurisdiction to try the defendant, for a reduction of said Se;!Urity. (3) When it satisfactorily appears by exaxnination on oath of the witness, or any other person, that the witness is uaable to give security, the xnagistrate in the first instance, and the trial court having jurisdiction in the second instance, shall xnake an order finding such fact, and the witness shall be detained pending application for his conditional examination. Within three days froxn the entry of the order last xnentioned, tile:: witness so detained shall be conditionally examined on behalf of the state or the defendant on application xnade for that purpose. Such exaxnination shall be by question and answer in the presence of the other party and counsel, and sh~1jl be taken down by a court reporter or a stenographer selected by the parties, and reduced to writing. At the coxnpletion of the ex<j.xnination, the witness shall be discharged, and his deposition xnay be introduced in evidence by the defendant at the forthcoxning trial, or if the prosecuting attomey and the defendant and his counsel agree, the deposition xnay be adxnitted in evidence at the trial, by stipulation. No such deposition shall be admitted on behalf of the state, unless the defendant consents thereto. ( 4) If no conditional exaxnination is had within the above xnentioned period of three days, the witness so detained shall be forthwith discharged. (5) A witness so coxnxnitted shall be entitled to his fees as a witness for the period of his coxnxnitment. History.- 41, ch , 1939; CGL 1940 Supp. 8663(41). cf , Continuance on ground of absent witness Transmission of papers by magis trate.-(1) When the xnagistrate has discharged the defendant, or has held hixn to answer, he shall transxnit without delay to the clerk of the court having jurisdiction of the offense: (a) The warrant; (b) The depositions of the witnesses;

15 PRELIMINARY EXAMINATION Ch. 902 (c) The defendant's deposition, if he testified; (d) The recognizance or undertaking for the appearance of witnesses; (e) A copy of the order discharging or holding the defendant; (f) Every article, writing, money, or other exhibit used in evidence; provided, however, that such articles, writings, moneys, or other exhibits so used in evidence before said magistrate may be returned to the owner thereof upon written order of the judge of the court having jurisdiction to try the defendant. (2) Any magistrate who refuses or fails to transmit the papers so mentioned, may be ordered to do so by the court having jurisdiction, and in case he disobeys such orders may be held for contempt. Hlstory.- 42, ch , 1939; CGL 1940 Supp. 8663(42) When prosecutor liable for costs. (1) If any person shall make complaint before a justice of the peace that a crime or misdemeanor has been committed, and if such person be recognized by the justice to appear at the next term of the proper court to give his evidence as to such crime or misdemeanor, on his failure to appear to give such evidence, he shall be liable to the justice for all the costs occasioned by his complaint, and the justice may obtain a judgment and execution for the same as in other cases. (2) No person who voluntarily appears before any grand jury, or before any prosecuting attorney of any criminal court of record, or any justice of the peace, or any county judge, shall be paid a per diem or mileage as a witness unless the grand jury finds a true bill or the prosecuting attorney files an information, or the justice of the peace or county judge holds the party charged for trial in the case or cases about which said witness appeared to testify, or caused himself to be summoned to testify. (3) No person who voluntarily appears or has himself summoned before a justice of the peace or county judge, upon the trial of any misdemeanor before such justice or county judge, shall be paid a per diem or mileage as a witness unless the trial results in a conviction of the defendant. (4) No sheriff, deputy sheriff, constable, deputy constable, highway patrolman, or other person employed or paid by the state or any county thereof as a law enforcement officer, shall be entitled to witness fees or to mileage when summoned to testify in any court sitting in the county in which he holds office, is employed, or has his residence. History.- 43, ch , 1939; CGL 1940 Snnp. 8663(48). cf , Sheriff not entitled to constructive mileage. 2915

16 Ch. 903 BAIL, BONDS; BONDSMEN; RUNNERS Offenses less than capital Application for bail denied Jurisdiction of trial court to admit to bail Notice of application for admission to bail; subsequent application Qualification of sureties Validity of undertaking by minor or married woman Persons prohibited from signing undertaking Sufficiency of sureties Justification of sureties Bail before conviction; condition of the undertaking Bail on appeal; condition of the undertaking Contracts to indemnify sureties Deposit of money or bonds as bail Substitution of cash bail for other bail Bail after deposit of money or bonds Increase or reduction of bail Surrender of defendant Method of surrender; exoneration of obligors Arrest of principal by surety Arrest and commitment by court Bail after recommitment Qualifications of surety after order of recommitment Forfeiture of the undertaking; when and how directed Discharge of forfeiture Enforcement of forfeiture Remission of forfeiture Application for remission of forfeiture; how made and on what terms granted Canceling the undertaking Offenses less than capital.-all persons in custody for the commission of an offense, not capital, shall before conviction be entitled as of right to be admitted to bail, and after conviction bail may be granted at the discretion of either the trial or appellate court. Hlator;y.- 44, ch , 1939; CGL 1940 Supp. 8663(44). Am. 1, ch , cf S, Provisions supplementary to this chapter Application for bail denied.-if application for bail is made to an authorized court and denied, no court of inferior jurisdiction shall admit applicant to bail, unless such court of inferior jurisdiction is the court having jurisdiction to try the defendant. Hlstory.- 45, ch , 1939; CGL 1940 Supp. 8668(45) Jurisdiction of trial court to admit to bail-after a person is held to answer by a magistrate, the court having jurisdiction to try the defendant shall, before indictment or information is filed, have jurisdiction to hear and decide all preliminary motions as to bail and production or impounding of all articles, writings, moneys, or other exhibits expected to be used at the trial by either the state or the defendant. History.- 46, ch , 1939; CGL 1940 Supp, 8668(46). cf , Production and discovery of documents, etc., for Inspection or copying. CHAPTER 903 BA~.BONDS; BONDSMEN; RUNNERS Defects in undertaking Bail not discharged for certain defects Who may admit to bail Officer taking insufficient bail Guaranteed arrest bond certificates as cash bail Definitions for State treasurer designated insurance commissioner Licenses; general License required License tax and fee Bail bond rates Bail bondsmen; qualifications Same; professional bondsmen Runners; qualifications Examination; time; place; fee; scope Notice of appointment of limited surety agents; termination Notice of appointment of professional bondsmen; termination Notice of appointment of runners; termination Registration of bail bondsmen Power of attorney; to be approved by commissioner Prohibitions Denial, suspension, refusal to renew, or revocation of license Procedure for denial, revocation, suspension or refusal to renew license Review of denial, suspension, revocation or refusal to renew license All bondsmen of same agency; licensed by same companies Exemption Penalty Notice of application for admission to bail; subsequent application.- (1) The court to whom an application for admission to bail is made, shall in all cases require written notice thereof to be given to the prosecuting attorney of the court having jurisdiction of the offense at least one hour before the hearing, unless notice is waived in writing by such prosecuting attorney. (2) When a committing magistrate, not possessing trial jurisdiction orders a defendant held to answer before a court having jurisdiction to try defendant, and bail has been denied, or is alleged to be excessive, application by motion may be made to the court having jurisdiction to try the defendant. or in the absence of the judge of said trial court, in counties having a criminal court of record, court of crimes, or both, or either, application may be made to the judge of the circuit court of the county where the crime was committed. (3) In the event any trial court fixes bail, before trial, the defendant may institute habeas corpus proceedings seeking reduction of bail. ( 4) If application is made to the supreme court notice shall be given to the attorney general. Hlstor;y.- 47, ch , 1939; CGL 1940 Supp. 8663(47). 2916

17 Qualification of sureties. - Each surety for the release of a person on bail, other than a surety company duly authorized by law to act as such surety, shall be a resident of or owner of real estate within the state. Hlstory.- 48, ch , 1939; CGL 1940 Supp. 8663(48). cf , Qualification of sureties after order of recommitment Validity of undertaking by minor or married woman.-minors and married women shall be capable of binding themselves by an undertaking for the purpose of securing their release on bail in like manner and with like effect as persons sui juris. Hlstory.- 49, ch , 1939; CGL 1940 Supp. 8663(49) Persons prohibited from signing undertaking.-n o attorney at law and no official authorized to admit to bail, nor any state, or county officer shall become surety on any undertaking. Hlstory.- 50, ch , 1939; CGL 1940 Supp, 8663(50), Sufficiency of sureties.-if there is only one surety he shall be worth the amount specified in the undertaking exclusive of the amount of any other undertaking on which he may be principal or surety, and exclusive of property exempt from execution and over and above all liabilities; if there are several sureties they shall in the aggregate be worth that amount exclusive of the amount of other undertakings, and of the exemptions and liabilities mentioned above. Hlotory.- 51, ch , 1939; CGL 1940 Supp. 8663(51) Justification of sureties.- (!) Each surety shall justify by affidavit that he possesses the qualifications and sufficiency to become a surety, and in such affidavit shall describe his property, to which he proposes to justify as to his sufficiency, stating the encumbrances thereon, and the number and amount of undertakings, if any, in any court, entered into by him and remaining undischarged. The false making of any such affidavit shall be considered perjury. (2) Each bondsman as defined in (3) shall justify his suretyship by attaching a copy of the power of attorney issued by the company to each bond, or by attaching to the bond United States currency, United States postal money order or cashier's check in the amount of the bond; provided further that the United States currency, United States postal money order or cashier's check cannot be used to secure more than one bond. Hlotory.- 52, ch , 1939; CGL 1940 Supp. 8663(52). Am. 1, ch cf.-ch. 837, Perjury Bail before conviction; condition of the undertaking.-(!) If a person is admitted to ba.il f?r his appearance for a preliminary exammat10n, or on a charge that a magistrate is empowered to try, the condition of the undertaking shall be that he will appear for such examination, or to answer the charge, and will submit himself to the orders and process of the BAIL, BONDS; BONDSMEN; RUNNERS Ch. 903 magistrate trying the same, and will not depart without leave. (2) If he is admitted to bail after he has been held to answer by a magistrate, or after an indictment has been found or an information filed against him, the condition of the undertaking shall be that he will appear to answer the charge before the court in which he may be prosecuted and submit to the orders and process of the court, and will not depart without leave. Hlstory.- 65, ch , 1939; CGL 1940 Supp. 8663(66) Bail on appeal; condition of the undertaking.-if the defendant is admitted to bail, after conviction and upon appeal, the condition of the undertaking shall be: (1) That he will duly prosecute his appeal; (2) That he will surrender himself in execution of the judgment or sentence upon its being affirmed or modified, or upon the appeal being dismissed; or in case the judgment is reversed and the cause remanded for a new trial, that he will appear in the court to which said cause may be remanded and submit himself to the orders and process thereof, and will not depart without leave. Hlotory.- 66, ch , 1939; CGL 1940 Supp. 8663(56) Contracts to indemnify sureties. Every surety for the release of any person on bail, shall file with the undertaking an affidavit stating whether or not he or any one for his use has been promised or has received any security or consideration for his undertaking, and if so, the nature and amount thereof, and the name of the person by whom such promise was made or from whom such security or consideration was received. Any willful misstatement in such affidavit or any intentional omission to set forth in the affidavit all the security or consideration promised or given shall render the person making it subject to the same prosecution and penalty as one who commits perjury. An action to enforce any indemnity agreement shall not lie in favor of the surety against such indemnitor, except with respect to agreements set forth in such affidavit. In an action by the indemnitor against the surety to recover any collateral or security given by the indemnitor, such surety shall have the right to retain only such security or collateral as is mentioned in the affidavit required above. Hiotory.- 57, ch , 1939; CGL 1940 Supp. 8663(57). cf , Perjury Deposit of money or bonds as bail. When the defendant has been admitted to bail he, or another in his behalf, may deposit with an official authorized to take bail, a sum of money, or nonregistered bonds of the United States, or of the state, or of any county, city or town within the state, equal in market value to the amount mentioned in the order admitting the defendant to bail, together with his personal undertaking, and an undertaking of such other person, if the money or bonds are deposited by another. Upon delivery to the 2917

18 Ch. 903 BAIL. BONDS; BONDSMEN; RUNNERS official in whose custody the defendant is of a certificate of such deposit, he shall be discharged from custody in the cause. Hl toey.- 69, ch , 1939; CGL 1940 Supp. 8668!68) Substitution of cash bail for other bail.-when bail other than a deposit of money or bonds has been given, the defendant or the surety may, at any time before a breach of the undertaking, deposit the sum mentioned in the undertaking, and upon such deposit being made, accompanied by a new undertaking, the original undertaking shall be canceled. Hietoey.- 60, ch , 1939; CGL 1940 Supp. 8668(60) Bail after deposit of money or bonds. -If money or bonds have been deposited, bail by sureties may be substituted therefor at any time before a breach of the undertaking, and the official taking the new bail shall make an order that the money or bonds be refunded to the person depositing the same and they shall be refunded accordingly, and the original undertakings shall be canceled. Histor:y.- 61, ch , 1939; CGL 1940 Supp. 8668(61) Increase or reduction of bail.-the court in which a prosecution is pending may for good cause, after notice, either increase or reduce the amount of bail or require new or additional bail. Histor:y.- 62, ch , 1939; CGL 1940 Supp. 8663(62) ct , Habeas corpus proceedings seeking reduction ot ball Surrender of defendant.-at any time before there has been a breach of the undertaking any surety may surrender the defendant, or the defendant may surrender himself, to the official to whose custody the defendant was committed at the time bail was taken, or to the official into whose custody the defendant would have been given had he been committed. Hletoey.- 63, ch , 1939; CGL 1940 Supp. 8663(63), Method of surrender; exoneration of obligors.-(!) The person desiring to make a surrender of the defendant shall procure a certified copy of the undertakings and deliver them together with the defendant to the official in whose custody the defendant was at the time bail was taken, or to the official into whose custody he would have been given had he been committed, who shall detain the defendant in his custody thereon, as upon a commitment, and by a certificate in writing acknowledge the surrender. (2) Upon the presentation of a certified copy of the undertakings and the certificate of the official, the court before which the defendant has been held to answer, or the court in which the preliminary examination, indictment, information or appeal, as the case may be, is pending, shall upon notice of three days given by the person making the surrender to the prosecuting officer of the court having jurisdiction of the offense, together with a copy of the undertakings and certificate, order 2918 that the obligors be exonerated from liability of their undertakings; and, if money or bonds have been deposited as bail, that such money or bonds be refunded. On filing the order and the papers used in the application all persons bound are thereby exonerated, and if money or bonds have been deposited as bail, such money or bonds shall be refunded. Histor:y.- 64, ch , 1939; CGL 1940 Supp. 8668(64) Arrest of principal by surety.-for the purpose of surrendering the defendant, the surety may arrest him before the forfeiture of the undertaking, or, by written authority indorsed on a certified copy of the undertaking, may empower any peace officer to make arrest, first paying the lawful fees therefor. Histor:y.- 65, ch , 1939; CGL 1940 Supp, 8668(66) Arrest and commitment by court. The court in which the cause is pending, or a judge thereof, may, by an order entered in the minutes of the court, direct the arrest of the defendant who is at large on bail, and his commitment, in the following cases: (1) When there has been a breach of the undertaking; (2) When it appears that his sureties or any of them are dead or cannot be found or are insufficient or have ceased to be residents of the state; (3) When the court or judge is satisfied that the bail should be increased or new or additional security required; ( 4) When an indictment has been found against the defendant for an offense in respect of which he is not bailable. The order for the commitment of the defendant shall recite generally the facts upon which it is founded, and shall direct that the defendant be arrested by any official authorized to make arrests, and that the defendant be committed to the official in whose custody he would be had he not given bail, to be detained by such official until legally discharged. The defendant shall be arrested pursuant to such order upon a certified copy thereof, in any county, in the same manner as upon a warrant of arrest. If the order provided for is made because of the failure of the defendant to appear for judgment or because an indictment has been found against him for an offense in respect of which he is not bailable, the defendant shall be committed. If the order is made for any other cause and the defendant is bailable the court or judge may fix the amount of bail and direct in the order that the defendant be admitted to bail in the sum fixed, which sum shall be specified in the order. HIBtoey.- 66, ch , 1939; CGL 1940 Supp, 8668(88), Bail after recommitment.-if the defendant applies to be admitted to bail after recommitment and he is bailable, he may be

19 admitted to bail by the court which recommitted him. Hlatory.- 67, ch , 1939; CGL 1940 Supp. 8668(67), Qualifications of surety after order of recommitment.-if the defendant offers bail after recommitment, each surety shall possess the qualifications and sufficiency, and the bail shall be furnished in all respects in the manner prescribed for admission to bail before recommitment. Hlatory.- 68, ch , 1939; CGL 1940 Supp. 8663(68). cf , Qualification of sureties , Sufficiency of sureties , Justification ot auretlea Forfeiture of the undertaking; when and how directed.-(!) If there is a breach of the undertaking, the court before which the cause is pending shall make a record thereof and shan declare the undertaking, and any money or bonds that have been deposited as bail, forfeited. (2) Upon said undertaking being forfeited, the clerk of the trial court shall immediately transmit the undertaking and any affidavits, to the clerk of the circuit court of the county in which said undertaking and affidavits are filed, who shall record the same in the deed book of said county. If said undertaking and affidavits describe real property in another county, the clerk of the trial court shall transmit said undertaking and affidavits to the clerk of the circuit court of such other county, who shall likewise record same, and return said undertakings and affidavits to said first mentioned clerk. The undertaking and affidavits shall be a lien on any real property described in the same, from the time of the recording thereof in the county in which the property is situated. Upon the filing of an order by the court having jurisdiction, with the clerk of the circuit court of the county where the property is situated, canceling the undertaking, the lien shall be discharged. (3) The undertaking and affidavits shall be a lien on any real property described in the same for a period of one year from the time of the recording thereof in the county in which the property is situated, and thereafter until the final determination of any action or suit brought thereon instituted within such one year period. If no action is instituted within one year from date of recording, the lien shall stand discharged. After the expiration of one year from the date on which the undertaking and affidavits were recorded the same shall not continue a lien even though an action or suit is instituted unless in connection with the institution of such action or proceeding a lis pendens notice is filed and recorded. Hlstory.- 69, ch , 1939; CGL 1940 Supp. 8663(69). cf , Calling of sureties upon breach of undertaking , Certificate of judge setting forth breach of conditions, etc , Unlawful to forfeit ball bond; penalty Discharge of forfeiture.-if, at any time within ten days after the undertaking has been forfeited, the breach of the undertaking BAIL, BONDS; BONDSMEN; RUNNERS Ch is satisfactorily explained and the defendant shall in all other respects have complied with the condition of the undertaking, the court before which the case is pending may direct the forfeiture of the undertaking to be discharged upon such terms as are just. Hlstory.- 70, ch , 1939; CGL 1940 Supp. 8663(70) Enforcement of forfeiture.-if the forfeiture is not discharged, and the undertaking is one secured otherwise than by the deposit of money or bonds, the prosecuting attorney shall immediately after the lapse of thirty days after the date of forfeiture, but in any event within one year from said date, proceed against the defendant or any surety upon his undertaking as follows: The prosecuting attorney shall file a certified copy of the order of the court or judge forfeiting the same, in the office of the clerk of the circuit court of the county wherein such order shall have been made, and thereupon the judge of the circuit court in said county shall enter judgment against the person bound by the undertaking for the amount of the penalty of said undertaking, and execution shall be issued to collect the amount of said undertaking. Hiotory.- 71, ch , 1939; CGL 1940 Supp. 8663(71) Remission of forfeiture.-after the entry of judgment on the undertaking, the court entering the judgment may for a reasonable cause shown within thirty days set aside the judgment in whole or in part upon such terms as are just; and shall set aside the same if it shall appear that there was no breach of the undertaking. Hiatory.- 72, ch , 1939; CGL 1940 Supp. 8663(72) Application for remission of forfeiture; how made and on what terms granted. -Application to set aside or modify the judgment shall be made within twenty-five days from the entry of judgment and shall be accompanied by affidavits setting forth the facts on which it is founded; and shall be upon at least five days' notice to the prosecuting attorney of the county. The notice shall be accompanied by a copy of the affidavit and of any other paper on which the application is founded. The application shall be granted only upon payment of the costs and expenses incurred by the county in the proceedings for the enforcement of the forfeiture unless it is granted on the ground that there was no breach of the undertaking. Hlstory.- 73, ch , 1939; CGL 1940 Supp. 8663(73) Canceling the undertaking.-when the condition of the undertaking is satisfied or the forfeiture of the undertaking has been discharged or remitted the court shall make an order canceling the undertaking. Hlstory.- 74, ch , 1939; CGL 1940 Supp. 8663(74) Defects in undertaking.-(!) No undertaking shall be invalid, nor shall any person be discharged from his undertaking, nor a forfeiture thereof be stayed, nor shall

20 Ch. 903 BAIL, BONDS; BONDSMEN; RUNNERS judgment thereon be stayed, set aside or reversed, or the collection of any such judgment be barred or defeated by reason of any defect of form, omission of recital or of condition, failure to note or record the default of any principal or surety, or because of any other irregularity, or because the undertaking was entered into on Sunday or other holiday, if it appear from the tenor of the undertaking before what magistrate or at what court the principal was bound to appear, and that the official before whom it was entered into was legally authorized to take it and the amount of bail is stated. (2) If no day is fixed for the appearance of the defendant, or an impossible day, or a day in vacation, the undertaking, if for his appearance before a magistrate for a hearing, shall bind the defendant to appear in ten days from the receipt of notice so to do by the defendant, his counsel, or any surety on the undertaking; and if for his appearance in a court for trial, shall bind the defendant so to appear on the first day of the next term of the court which shall commence more than three days after the giving of the undertaking. Hlstor:r.- 75, ch , 1939; CGL 1940 Supp. 8663(76) Bail not discharged for certain defects.-the liability of a person on an undertaking shall not be affected by reason of the lack of any qualifications, sufficiency or competency provided in the criminal procedure law, or by reason of any other agreement than that expressed in the undertaking, or because the defendant has not joined in the undertaking. Hlstor:r.- 76, ch , 1939; CGL 1940 Supp. 8663(76) Who may admit to bail.-(1) Except as otherwise provided in the criminal procedure law, admission to hail at any stage of the proceedings shall be made by the same official now authorized by law in this state to admit to bail at a similar stage. (2) In all criminal cases instituted or pending in the courts of county judges or justices of the peace or other committing magistrates, all bonds given by defendants therein at any time before the trial, shall be approved by the sheriff, county judge, justice of the peace, or other judge trying the case, as the case may be; and all bonds given by defendant after preliminary hearing shall be a~prcved by the sheriff, county judge, justictl of the peace or other committing magistrates, except appeal bonds which in the county judge or justice of tht: peace court shall be approved by such county judge or justice of the peace; and in appeals from the circuit court, court of crimes, criminal courts of records, or other courts having- a clerk, the bond may be approved by the judge or the clerk of the court. Hlstor:r.- 77, ch , 1939; CGL 1940 Supp. 8663(77). cf , Allowance of ball by trial court Officer taking insufficient bail.-any official who takes bail, which he knows to be 2920 insufficient, or accepts a surety in an undertak ing knowing such surety not to possess the qualifications or sufficiency requ1red by law, or accepts as surety any professional bondsman who is not duly registered with the clerk of the circuit court, and qualified to c1ct as surety, shall be guilty of a misdemeanor, and upon conviction, shall be imprisoned not exceeding thirty days or fined not exceeding one hundred dollars, and may be removed ftom office by the governor. Hlstory.- 78, ch , 1939; CGL 1940 Supp. 8663(78). cf , Alternative punishment Guaranteed arrest bond certificates as cash bail.-any guaranteed arrest bond certificate with respect to which a surety company has become surety, as provided in , shall, when posted by the person whose signature appears thereon, be accepted in lieu of cash bail in an amount not to exceed two hundred dollars, as a bail bond, to guarantee the appearance of such person in any court, including municipal courts, in this state, at such time as may be required by the court, when such person is arrested for violation of any motor vehicle law of this state or ordinance of any municipality in this state (except for the offense of driving while intoxicated or for any felony) committed prior to the date of expiration shown on such guaranteed arrest bond certificate; provided, that any such guaranteed arrest bond certificate so posted as a bail bond in any court in this state shall be subject to the forfeiture and enforcement provisions with respect to bail bonds posted in criminal cases as set forth in Chapter 903 as it now exists or may hereafter be amended, and that any such guaranteed arrest bond certificate posted as a bail bond in any municipal court in this state shall be subject to the forfeiture and enforcement provisions of the charter or ordinance of the particular municipality pertaining to bail bonds posted. Hlstory.-Comp. 2, ch , Definitions for The following words when used in shall have the meanings respectively ascribed to them in this section: (1) "Commissioner" shall mean the state treasurer as ex officio insurance commissioner. (2) "Insurer" shall mean any domestic, foreign or alien surety company which has qualified to transact surety business in this state. (3) "Bail bondsman" shall mean a limited surety agent or a professional bail bondsman as hereafter defined. (4) "Limited surety agent" shall mean any individual appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings and receives or is promised money or other things of value therefor. (5) "Professional bondsman" shall mean any person who pledges United States currency, United States postal money orders, or cashier's checks or other property as security for a bail

21 bond in connection with a judicial proceeding and receives or is promised therefor money or other things of value. (6) "Runner" shall mean a person employed by a bail bondsman for the purpose of assisting the bail bondsman in presenting the defendant in court when required, or employed by the bail bondsman to assist in the apprehension and surrender of defendant to the court, or keeping the defendant under necessary surveillance. This does not affect the right of a bail bondsman to hire counsel, or to ask assistance of law enforcement officers. History.- 1, ch , 1955; (5) by 2, ch State treasurer designated insurance commissioner.- (!) The commissioner shall have full POVI'er and authority to administer the provisions of , which regulate bail bondsmen and runners, and to that end, to.adopt, promulgate and enforce rules and regulations necessary and proper to effectuate and enforce the purposes and provisions of said sections. The commissioner may employ and discharge such employees, examiners, counsel, and such other assistants as shall be deemed necessary, and he shall prescribe their duties and their compensation shall be the same as other state employees receive for similar services. (2) The commissioner shall adopt a seal by which his proceedings are authenticated. Any written instrument purporting to be a copy of any action, proceeding, or finding of fact by the commissioner, or any record of the commissioner authenticated under the hand of the commissioner by the seal, shall be accepted by all the courts of this state as prima facie evidence of the contents thereof. (3) The commissioner's papers, documents, reports or evidence shall not be subject to subpoena without his consent until after the same shall have been published at a hearing held under said sections, unless after notice to the commissioner and hearing, the court shall determine that the commissioner shall not be unnecessarily hindered or embarrassed. Hlstor:r.-comp. 2, ch , Licenses; general.- ( I) No license shall be issued except in compliance with this chapter and none shall be issued except to an individual. A firm, partnership, association, or corporation, as such, shall not be licensed. (2) For the protection of the people of this state, the commissioner shall not issue nor renew, nor permit to exist any license except in compliance with this chapter. The commissioner shall not issue nor renew, nor permit to exist a license for any individual found to be untrustworthy or incompetent, or who has not established to the satisfaction of the commissioner that he is qualified therefor in accordance with this chapter. (3) The commissioner may propound any BAIL, BONDS; BONDSMEN; RUNNERS Ch. 903 reasonable interrogatories to an applicant for a license under this chapter or on any renewal thereof, relating to his qualifications, residence, prospective place of business, and any other matters which, in the opinion of the commissioner, are deemed necessary or expedient in order to protect the public and ascertain the qualifications of the applicant. The commissioner may also conduct any reasonable inquiry or investigation he sees fit, relative to the determination of the applicant's fitness to be licensed or to continue to be licensed. ( 4) All licenses issued shall expire annually on September 30 unless revoked or suspended prior thereto by the commissioner, or upon notice served upon the commissioner that the insurer or employer of any runner has cancelled the licensee's authority to act for such insurer or employer. (5) (a) A renewal license shall be issued by the commissioner upon receipt of written application on forms prescribed by him to any licensee who has continuously maintained same in effect, without further examination, unless deemed necessary by the commissioner, upon the payment of the renewal fee as hereinafter provided, but such licensee shall in all other respects be required to comply with and be subject to the provisions of this chapter. (b) After the receipt of such licensee's application for renewal the current license shall continue in effect until the renewal license is issued or denied for cause. (6) Any person who represents a surety company and whose duties are restricted to bail bonds only but who comes under the definition of service representative as provided in (5) (6) may be licensed as a bail bondsman provided such person meets the qualification requirements of this chapter. Provided further, such person must either be licensed as a bail bondsman or qualify as a service representative as provided in (5) (6). Blstor:r.-Comp. 3, ch , License required.-no person shall act in the capacity of a professional bail bondsman, limited surety agent, or runner, or perform any of the functions, duties or powers prescribed for bail bondsmen or runners under the provisions of this chapter unless that person shall be qualified and licensed as provided in this chapter. mstor:r.-comp. 4, ch , License tax and fee.-the issuance of any license in accordance with this chapter shall be subject to the same taxes and fees as required of fire and casualty agents as provided by mstor:r.-comp. 5, ch , Bail bond rates.-bail bond rates shall be subject to the provisions of chapter 630. It shall be unlawful for a bail bondsman to execute a bail bond without charging a

22 Ch. 903 BAIL, BONDS; BONDSMEN; RUNNERS premium therefor and the premium rate shall not exceed nor be less than the premium rate as filed with and approved by the commissioner. Waior;r.-Comp. 6, ch , Bail bondsmen; qualifications. (!) Application for qualification for bail bondsmen shall be submitted on forms furnished by the commissioner. (2) To qualify as a bail bondsman it must affirmatively appear: (a) Applicant is a natural person who has reached the age of twenty-one years. (b) Applicant is a citizen of the United States; has been a bona fide resident of the state for one year last past and will actually reside in this state at least six months out of each year. (c) Applicant will actively engage in the bail bond business. (d) Applicant has knowledge, experience or instruction in the bail bond business, and that he has successfully completed a correspondence course for bail bondsmen approved by the commissioner; or he has been engaged as a licensed runner for a period of one year within the last five years; or he has held a valid all lines fire and casualty agent's license for one year within the last five years; or he has been employed by a company engaged in writing bail bonds in which field he has specialized for at least one year of the last five years. (e) Applicant shall be vouched for and recommended upon sworn statements by at leaht three bail bondsmen licensed by the commissioner, or three other reputable citizens who are residents of the same counties in which applicant proposes to engage in the bail bond business. (f) Applicant shall be a person of high character and approved integrity. (3) A fee of ten dollars shall be submitted to the commissioner with each application which shall be deposited in the state agencies' fund and used by the commissioner to defray the cost of conducting character investigations of applicants. ( 4) Applicant shall furnish with his application, a complete set of his fingerprints and a recent credential-size full face photograph of himself. The applicant's fingerprints shall be certified by an authorized law enforcement officer. Hlstor;r.-Comp. 7, ch , Same; professional bondsmen.-in addition to the qualifications prescribed in , to qualify as a professional bondsman, an applicant shall (1) furnish with his application for qualification and with each renewal application for license a detailed financial statement under oath; and (2) file with his application for qualification the rating plan he will use in writing bail bonds. A professional bondsman shall on or before August 15 of each year file a sworn statement of his assets and his liabilities, listing every forfeiture of bonds executed by him, giving 2922 date of forfeiture, amount of forfeiture and name of court where forfeiture is recorded, and date of payment. Wator;r.-Comp. 8, ch , Runners; qualifications.-to qualify as a runner: (1) It must affirmatively appear from the application : (a) That the applicant is a natural person who has reached the age of twenty-one years. (b) That the applicant is a citizen of the United States; has been a bona fide resident of this state for more than six months last past. (c) That the applicant will be employed by only one bail bondsman, who will supervise the work of the applicant, and be responsible for the runner's conduct in the bail bond business. (d) The application must be endorsed by the appointing bail bondsman, who shall obligate himself to supervise the runner's activities in his behalf. (2) A fee of ten dollars shall be submitted with each application which shall be deposited in the state agencies' fund and used by the commissioner to defray the costs of conducting character investigations of the applicants. Wdor;r.-Comp. f9, ch , Examination; time; place; fee; scope.- (1) Should the commissioner from the application for qualification filed by an applicant or from the commissioner's inquiry into the general fitness of the applicant, deem an applicant a fit and proper person to be a bail bondsman and otherwise qualified under the law, the application shall be approved; should the commissioner deem such applicant unfit he may deny the applicant the right to take the examination. (2) Upon approval by the commissioner the applicant shall be required to appear in person at a place hereinafter designated to take a written examination prepared by the commissioner, testing his ability and qualifications to be a bail bondsman. (3) Each applicant shall become eligible for examination sixty days after the date the application is received by the insurance department in Tallahassee provided the commissioner is satisfied as to the applicant's fitness to take the examination. Examinations shall be held in the commissioner's offices where an adequate and designated examination room is available. Each applicant shall be entitled to take the examination at such of the said offices which is located closest to his place of residence, and he shall be entitled to notice of the time and place not less than fifteen days prior to taking the examination. (4) The fee for such examination shall be ten dollars payable to the commissioner and shall be submitted along with the applicant's application for qualification. (5) The failure of the applicant to secure approval of the commissioner shall not pre-

23 elude him from applying as many times as he desires, but no application will be considered by the commissioner within sixty days subsequent to the date upon which the commissioner denied the last application. (6) The failure of an applicant to pass an examination, after having been approved by the commissioner to take the examination, shall not preclude him from taking subsequent examinations; provided, however, that at least sixty days must intervene between examinations. (7) The ten dollars examination fee shall apply to each examination, but once an applicant has been approved by the commissioner he will not have to file another application as set forth in and unless specifically so ordered by the commissioner. Any bail bondsman who successfully passes an examination must be licensed within twenty-four months from date of examination or be subject to another examination unless failure to secure license was due to military service, then, in that event the period of time shall be extended to twelve months following date of discharge from military service; provided the period of military service does not exceed five years. (8) The scope of the examination shall be as broad as the bail bond business. Blstory.-Comp. 10, ch , Notice of appointment of limited surety agents; termination.- ( I) Every insurer shall every year, prior to October 1, furnish the commissioner a list of all limited surety agents appointed by it to write bail bonds on its behalf. Every such insurer who shall, subsequent to the filing of this list, expect to appoint a limited surety agent in the state, shall give notice thereof to the commissioner along with a written application for license for said agent. All such appointments shall be subject to the issuance of a license to such agents. (2) The commissioner shall promptly notify any applicant who has passed the limited surety agent's examination. Upon receipt of application for license and proper taxes and fees, the commissioner shall issue a license in the name of the individual to the insurer. (3) An insurer terminating the appointment of a limited surety agent shall, within thirty days after such termination, file written notice thereof with the commissioner, together with a statement that it has given or mailed notice to the limited surety agent. Such notice filed with the commissioner shall state the reasons, if any, for such termination. Information so furnished the commissioner shall be privileged and shall not be used as evidence in or basis for any action against the insurer or any of its representatives. ( 4) Every insurer shall within five days after terminating appointment of any limited surety agent give written notice thereof to any BAIL, BONDS; BONDSMEN; RUNNERS Ch. 903 clerk of the circuit court and sheriff with which the agent is registered. mstory.-comp. 11, ch , Notice of appointment of professional bondsmen; termination.- (!) Any person applying to qualify as a professional bondsman shall at the time of filing his application for qualification also file with the commissioner an application for license and upon the applicant's passing the examination for bail bondsmen the commissioner shall promptly issue proper license. (2) Any professional bail bondsman who discontinues writing bail bonds during the period for which he is licensed shall notify the clerks of the circuit court and the sheriffs with whom he is registered and return his license to the commissioner for cancellation within thirty days from such discontinuance. mstory.-comp. 12, ch , Notice of appointment of runners; termination.- ( I) Every person duly licensed as a bail bondsman may appoint as runner any person who holds or has qualified for a runner's license. Each bail bondsman must, on or before October 1 of each year, furnish to the commissioner a list of all runners appointed by him, and make application for a license for each such runner on forms approved by the commissioner. Each such bail bondsman who shall, subsequent to the filing of this list, expect to appoint additional persons as runners shall file written notice with the commissioner and request a license for the said runner. (2) A bail bondsman terminating the appointment of a runner shall within thirty days file written notice thereof with the commissioner, together with a statement that he has given or mailed notice to the runner. Such notice filed with the commissioner shall state the reasons, if any, for such termination. Information so furnished the commissioner shall be privileged and shall not be used as evidence in any action against the bail bondsman. Blstory.-Comp. 13, ch , Registration of bail bondsmen.-no bail bondsman shall become a surety on an undertaking unless he has registered in the office of the sheriff and with the clerk of the circuit court in the county in which the bondsman resides and he may register in a like manner in any other county and any limited surety agent shall file a certified copy of his appointment by power of attorney from each insurer which he represents as agent with each of said officers. Registration and filing of certified copy of renewed power of attorney shall be performed annually on October 1. The clerk of the circuit court and the sheriff shall not permit the registration of a bail bondsman unless such bondsman is currently licensed by the commissioner. Bbtory.-Comp. 114, ch ,

24 Ch. 903 BAIL, BONDS; BONDSMEN; RUNNERS Power of attorney; to be approved by commissioner.-every insurer engaged in the writing of bail bonds through limited surety agents in this state shall submit and have approved by the commissioner a sample power of attorney which will be the only form of power of attorney it will issue to limited surety agents in Florida. History.-Comp. 15, ch , Prohibitions.- (!) No bail bondsman or runner shall: (a) Suggest or advise the employment of or name for employment any particular attorney to represent his principal. (b) Solicit business in or about any place where prisoners are confined or in or about any court. (c) Pay a fee or rebate or give or promise anything of value to a jailer, policeman, peace officer, committing magistrate, or any other person who has power to arrest or to hold in custody; or to any public official or public employee in order to secure a settlement, compromise, remission or reduction of the amount of any bail bond or estreatment thereof. (d) Pay a fee or rebate or give anything of value to an attorney in bail bond matters, except in defense of any action on a bond. (e) Pay a fee or rebate or give or promise anything of value to the principal or anyone in his behalf. (f) Participate in the capacity of an attorney at a trial or hearing of one on whose bond he is surety. (g) Accept anything of value from a principal except the premium, provided that the bondsman shall be permitted to accept collateral security or other indemnity from the principal which shall be returned upon final termination of liability on the bond. Such collateral security or other indemnity required by the bondsman must be reasonable in relation to the amount of the bond. (2) When a bail bondsman accepts collateral he shall give a written receipt for same, and this receipt shall give in detail a full account of the collateral received. (3) The following persons or classes shall not be bail bondsmen or runners and shall not directly or indirectly receive any benefits from the execution of any bail bond: (a) Jailers (b) Police officers (c) Committing magistrates (d) Justices of the peace (e) MJ.micipal or small claims court judges (f) Sheriffs, deputy sheriffs and constables (g) Any person having the power to arrest or having anything to do with the control of federal, state, county or municipal prisoners. ( 4) A bail bondsman shall not sign nor countersign in blank any bond, nor shall he 2924 give a power of attorney to, or otherwise authorize, anyone to countersign his name to bonds unless the person so authorized is a licensed bondsman directly employed by the bondsman giving such power of attorney. (5) No bail bond agency shall advertise as or hold itself out to be a bail bond or surety company. History.-comp. 16, ch , Denial, suspension, refusal to renew, or revocation of license.- (1) The commissioner may deny, suspend, revoke or refuse to renew any license issued under this law for any of the following causes or for any violation of the laws of this state relating to bail: (a) For any cause for which issuance of the license could have been refused had it then existed and been known to the commissioner. (b) Violation of any law relating to the business of bail bond insurance in the course of dealings under the license issued him by the commissioner. (c) Material mis-statement, misrepresentation or fraud in obtaining the license, or failure to pass any examination required under this chapter. (d) Misappropriation, conversion or unlawful withholding of moneys belonging to insurers or others and received in the conduct of business under the license. (e) Conviction of a felony involving moral turpitude. (f) Fraudulent or dishonest practices in the conduct of business under the license. (g) Willful failure to comply with, or willful violation of any proper order, rule or regulation of the commissioner. (h) Failure or refusal, upon demand, to pay over to any insurer he represents or has represented, any money coming into his hands belonging to the insurer. (i) Willful failure to return collateral security to the principal when the principal is entitled thereto. (2) When, in the judgment of the commissioner, the licensee has, in the conduct of affairs under the license, demonstrated incompetency, or untrustworthiness, or conduct or practices rendering him unfit to carry on the bail bond business, or making his continuance in such business detrimental to the public interest, or that he is no longer in good faith carrying on the bail bond business, or that he is guilty of rebating, or offering to rebate, or unlawfully dividing, or offering to divide his commissions in the case of limited surety agents, or premiums in the case of professional bondsmen, and for such reasons is found by the commissioner to be a source of detriment, injury or loss to the public. (3) In case of the suspension or revocation of license of any bail bondsman, the license of any or all other bail bondsmen who are

25 BAIL, BONDS; BONDSMEN; RUNNERS Ch. 903 members of the same agency, whether incorporated or unincorporated, any or all runners employed by such agency who knowingly were parties to the act which formed the ground for the suspension or revocation shall likewise be suspended or revoked for the same period as that of the offending bail bondsman, but this shall not prevent the licensing of any bail bondsman or runner except the one whose license was first suspended or revoked and those persons who knowingly were parties to the act, from being licensed as a member of, or bail bondsman or runner for some other agency. ( 4) No license under this chapter shall be issued, renewed, or permitted to exist when the same is used directly or indirectly to circumvent any of the provisions of this law. History.- 17, ch , 1955 ; (4) N by 3, ch Procedure for denial, revocation, suspension or refusal to renew license.-if, after investigation, it shall appear to the satisfaction of the commissioner that a bail bondsman or runner has been guilty of violating any of the laws of this state relating to bail bonds, the commissioner shall, upon ten days notice in writing to the bail bondsman or runner and to the insurer represented by him if a limited surety agent, accompanied by a copy of the charges of the unlawful conduct of such bail bondsman or runner, suspend the license of such bail bondsman or runner, unless on or before the expiration of the ten days the bail bondsman or runner shall make to the commissioner answer to the charges. If, after the: expiration of said ten days, and within twenty days thereafter, the bail bondsman or runner shall have failed to make answer or deny said charges the license of the bail bondsman or runner shall thereupon stand revoked. If, however, the bail bondsman or runner shall file written answer denying the charges within the time specified, the commissioner shall call a hearing within a reasonable time for the purpose of taking testimony and evidence on any issue of fact made by the charges and answer. The commissioner shall give notice to such bail bondsman or runner and to the insurer represented by him if a limited surety agent, of the time and place of the hearing and any of the parties shall have the right to produce witnesses, to require the attendance of witnesses, by subpoena issued by the commissioner, as herein provided, to cross-examine witnesses, and to appear personally or by counsel. If upon such hearing the commissioner shall determine that the bail bondsman or runner is guilty as alleged in said charges, he shall thereupon revoke the license of the bail bondsman or runner or suspend him for a definite period of time to be fixed in the order of suspension. For a period of two years thereafter no license shall be issued or reissued to the bail bondsman or runner. History.-Comp. 18, ch , Review of denial, suspension, revocation or refusal to renew license.-any applicant for license as bail bondsman or runner whose application has been denied or whose license shall have been so suspended or revoked, or renewal thereof denied, shall have the right of appeal from such final order of the commissioner thereon to the circuit court of the county from which the bail bondsman or runner applied for his license, and such appeal shall be subject to the law governing appellate proceedings as provided by chapter 59; provided, however, that such appeal shall be taken and filed within thirty days following the final order of suspension or revocation of said license. History.-Comp. 19, ch , All bondsmen of same agency; licensed by same companies.-all bail bondsmen who are members of the same agency, partnership, corporation or association shall be licensed for the same companies. If any member of such agency, partnership, corporation or association is licensed as a professional bondsman, all members thereof shall be so licensed. It shall be the responsibility of each company to see that each agent in an agency is licensed to represent that particular company. History.- 20, ch , 1955; 4, ch Exemption.-Nothing in shall be construed as to prevent any duly licensed all lines fire and casualty agent from writing bail bonds for any company authorized to write fidelity and surety bonds which he represents as agent, provided such agent shall be subject to and governed by all laws, rules, and regulations relating to bail bondsmen when engaged in the activities thereof. History.-Comp. 21, ch , Penalty.-Any person or corporation, who is found guilty of violating any of the provisions of this chapter shall, upon conviction, be fined not more than $ for each offense, or imprisoned in the county jail for not more than six months, or both. Wstory.-Comp. 22, ch ,

26 Ch. 904 METHODS OF PROSECUTIONS CHAPTER 904 METHODS OF PROSECUTIONS Prosecution by information or indictment Indictments triable in county judge's court Prosecution by information or in dictment.-all capital offenses shall be tried on indictment by a grand jury, and all other ca8es may be tried either by mdictrnent by grand jury or information filed by the prosecuting attorney under oath, except as is otherwise provided in the constitution of the state, and excepting cases of impeachment and in cases in the militia when in active service in time of war, or which the state with consent of congress may keep in time of peace. Hlstory.- 79, ch , 1939; CGL 1940 Supp. 8663(79). cf.- 10, Declaration of rights, Florida constitution Indictments triable in county judge's court.-upon the finding of an indictment by a grand jury for an offense triable in the county judge's court, the clerk of the circuit court in which the indictment is returned shall certify such indictment and deliver it to the county judge, and the defendant may be tried in the county judge's court upon such indictment. Hlstory.-Comp. 1, eh

27 Number and procurement of grand jury Who may challenge Ground for challenge to panel Grounds for challenge to individual grand juror When challenge or objection to be made How challenge made and tried Effect of sustaining challenge to panel Appointment of foreman Discharge and recall of grand jury Oath of grand jurors Charge of court Retirement of grand jurors Appointment of clerk Appointment of interpreter Duties of grand jurors. GRAND JURY Ch. 905 CHAPTER 905 GRAND JURY Number and procurement of grand jury.- (1) Every grand jury shall consist of not less than fifteen, nor more than eighteen persons, the assent of at least twelve of whom shall be necessary to the finding of any indictment. All the provisions of law covering the qualifications, disqualifications, exemptions, drawing, summoning, supplying deficiencies, in whole or in part, and compensation and procurement of petit jurors, shall apply to grand jurors. (2) The judge of any circuit cou:rt may dispense with the summoning, empaneling, and convening of the grand jury at any term of the court by making, entering and filing, either in vacation or term time, with the clerk of the court, a written order directing that no grand jury be summoned at such term of court. Hlstory.- 80, ch , 1939; CGL 1940 Supp. 8663(80). of , Provisions supplemental to this chapter , Qualifications, exemptions, selection, etc., of petit jurors. 10, Declaration of rights, Florida constitution, circuit court may dispense with summoning, etc , Number of grand jurors required to return Indictment Who may challenge.-the state or a person who has been held to answer may challenge the panel or an individual grand juror. Hlstory.- 81, ch , 1939; CGL 1940 Supp. 8663(81) Ground for challenge to panel.-a challenge to the panel may be made only on the ground that the grand jurors were not selected or drawn according to law. History.- 82, ch , 1939; CGL 1940 Supp. 8663(82) Grounds for challenge to individual grand juror.- A challenge to an individual grand juror may be made: (1) By either party for the reason: (a) That the juror has not the qualifications required by law, (b) That a state of mind exists on his part which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging, (c) That the juror is related by blood or marriage within the third degree to the defendant or to the person alleged to be in Who may be present during sessions of grand jury Duty of court Duty of prosecuting attorney Duty of grand juror having knowledge of offense When grand jury of another county maj indict in other cases Swearing of witnesses Number of grand jurors required to return indictment Proceedings of grand jury to be kept secret What grand juror not permitted to state or testify Not to disclose finding of indictments Testimony not to be disclosed; exceptions. jured by the offense charged or on whose complaint the prosecution was instituted. (2) By the state, because the juror is surety on the bail undertaking of any person whose case will come before the grand jury. Hhtory.- 83, ch , 1939; CGL 1940 Supp. 8863(88). cf , 40.07, Qualifications of jurors When challenge or objection to be made.-after the grand jurors have been empaneled and sworn, no objection shall be raised by plea or otherwise, to the grand jury. The empaneling and swearing of the grand jury shall be conclusive evidence of its competency and qualifications, but the provisions of this section shall apply only to defendants who knew, or had reasonable ground to believe, that cases in which they were or might be involved would be investigated by the grand jury at the time it was empaneled and sworn. Hlstory.- 84, ch , 1939; CGL 1940 Supp. 8668(84) How challenge made and tried. - A challenge to the panel shall be in writing, but a challenge to an individual grand juror may be either oral or in writing. All challengee shall be tried by the court. Hlstory.- 85, ch , 1939; CGL 1940 Supp. 8663(85) Effect of sustaining challenge to panel.-if a challenge to the panel is suetained, the grand jury shall be discharged. Hletory.- 86, ch , 1939; CGL 1940 Supp. 8663(86) Appointment of foreman.-when the grand jury is completed the court shall appoint one of the jurors to be foreman, and also another of the jurors to act as foreman in case of the absence of the foreman. Hlstory.- 87, ch , 1939; CGL 1940 Supp. 8668(87) Discharge and recall of grand jury. -When the grand jury attending any court shall have been dismissed before the court is adjourned without day, they may be summoned to attend again in the same term at such time as the court shall direct, for the dispatch of any business that may come before them. Hlstory.- 88, ch , 1939; CGL 1940 Supp. 8663(88).

28 Ch. 905 GRAND JURY Oath of grand jurors.-the clerk of the court shall prepare a list of the names of all the persons returned as grand jurors, and when the jury is empaneled, t.he following oath shall be administered to thp.m: "You, as grand jurors for th~ body of this county of do solemr.ly swear (or affirm, as the case may be) that you will diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge; the counsel of the State of Florida, your fellows and your own, you shall keep secret, unless required to disclose the same by some competent court; you. shall present no man for envy, hatred, or malice, neither shall you leave any man unpresented for love, fear, favor, affection, reward, or hope thereof, but you shall present things truly as they come to your knowledge, according to the best of your understanding. So help you God." Hlstory.- 89, ch , 1939; CGL 1940 Supp. 8663(89) Charge of court.-after the grand jurors are sworn the court shali charge them concerning their duties. History.- 90, ch , 1939; CGL 1940 Supp. 8663(90) Retirement of grand jurors.-after the charge by the court, the members of the grand jury shall retire to a private room and perform their duties, as prescribed by law. Hlstory.- 91, ch , 1939; CGL 1940 Supp. 8663(91) Appointment of clerk.-the foreman shall appoint one of the grand jurors to be clerk, who shall keep minutes of the proceedings. History.- 92, ch , 1939; CGL 1940 Supp. 8663(92). cf Delivering minutes to state attorney Appointment of inter[>reter.- The foreman or acting foreman, whenever necessary, shall appoint an interpreter, and shall swear him not to disclose any testimony or the name of any witnesses except when testifying in court. History.- 94, ch , 1939; CGL 1940 Supp. 8663(94) Duties of grand jurors.-the grand jurors shall inquire into every offense triable within the county for which any person has been held to answer, if an indictment has not been found or an information filed for such ofiense, and all other indictable offenses triable within the county which are presented to them by the prosecuting attorney or otherwise come to their knowledge. Hlstory.- 95, ch , 1939; CGL 1940 Supp. 8663(95), Who may be present during sessions of grand jury.-no person shall be present at the sessions of the grand jury except the witness under examination, the prosecuting attorney, the court reporter or stenographer, and the interpreter, if any. The stenographic records, notes or any transcript thereof made by the court reporter or stenographer shall be filed with the clerk of the court and kept by him in a sealed container not subject to inspection by the public. Such notes, records and transcriptions shall be opened and released by the clerk upon the request of any grand jury for the use of such grand jury and shall be opened and released by the clerk upon the order of the trial judge for use pursuant to the provisions of , but not otherwise. No person shall be present while the grand jurors are deliberating or voting. Any person violating either of the above prohibitions may be held in contempt of court. Hlstory.- 96, ch , 1939; CGL 1940 Supp. 8663(96) Am. 1, ch , Duty of court.-the court shall advise the grand jurors at all reasonable times regarding their legal duties, when requested by them. But the court shall not, in its original charge, or thereafter, restrict the grand jury in its investigation of any matter into which the grand jury is by law entitled to inquire. History.- 97, ch , 1939; CGL 1940 Supp. 8663(97) Duty of prosecuting attorney.-the prosecuting attorney or assistant prosecuting attorney shall attend the grand jurors for the purpose of examining witnesses in their presence, or of giving grand jurors legal advice regarding any matter cognizable by them. He shall also draft indictments. Hlstory.- 98, ch , 1939; CGL 1940 Supp. 8663(98) Duty of grand juror having knowledge of offense.-if a grand juror knows or has reason to believe that an indictable offense, triable within the county, has been committed, he shall declare such fact to his fellow jurors who shall investigate it. In such investigation the grand juror may be sworn as a witness. History.- 99, ch , 1939; CGL 1940 Supp. 8663(99) When grand jury of another county may indict in other cases.-whenever the judge sh::..ll deem it impracticable or mexpedient to form a grand jury in any county fer want of sufficient number of qualified jurors therein, or on account of any undue excitement or prejudice among the people, the grand jury of any county within the circuit, or in an adjoining circuit to which the cause may be sent by the judge of the circuit court in the county in which the crime was committed, may indict any person for crime committed in the county first mentioned. Upon the return of any such indictment, the same shall be certified and transferred to the county where the crime was committed and trial thereon shall be had in such county unless a motion for removal of cause should be made on behalf of the prosecution or the defense and such motion should be granted. History.- 100, ch , 1939; CGL 1940 Supp. 8663(100), 2928

29 GRAND JURY Ch Swearing of witnesses.-the foreman, acting foreman, state attorney, acting state attorney, or assistant state attorney commissioned by the governor, shall administer an oath or affirmation, in the manner prescribed by law, to any witness who shall testify before the grand jury. Hlstory.- 101, ch , 1939; CGL 1940 Supp. 8603(101) Number of grand jurors required to return indictment.- An indictment shall not be found without the concurrence of twelve grand jurors. When so found, the same shall be signed by the state attorney, or acting state attorney, and the foreman or acting foreman shall indorse it "A true bill," sign it, and return it into court. When not so found, the foreman shall endorse the words "No true bill" on the file, sign same, and return it into open court. Hlstory.- 102, ch , 1939; CGL 1940 Supp. 8663(102) Proceedings of grand jury to be kept secret.-every member of the grand jury shall keep secret whatever he or any other grand juror has said, and how he or any other grand juror has voted. Hlstory.- 103, ch , 1939; CGL 1940 Supp. 8663(103) What grand juror not permitted to state or testify.-no grand juror shall be permitted to state or testify in any court how he or any other grand juror voted on any question before them or what opinion was expressed by himself or any other grand juror regarding such question. Hlstory.- 104, ch , 1939; CGL 1940 Supp. 8668(104) Not to disclose finding of indict ments.-no grand juror, reporter, interpreter, stenographer, or officer of the court, unless the court shall so order, shall disclose the fact that any indictment for a felony has been found against any person not in custody or under recognizance, otherwise than by issuing or executing process on such indictment, until such person has been arrested. Wstory.- 105, ch , 1939; COL 1940 Supp. 8663(105) Testimony not to be disclosed; exceptions.-no grand juror, prosecuting attorney, or special legal counsel, court reporter, interpreter, or any other person appearing before the grand jury, shall disclose the testimony of a witness examined before the grand jury or ether evidence received by it except when required by a court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that of the witness given before the court, or to disclose the testimony given before the grand jury by any person upon a charge against such person for perjury in giving his testimony or upon trial therefor, or when permitted by the court in the furtherance of justice. Any person violating the provisions of this act shall be guilty of a criminal contempt of court, and punished accordingly. Hlstory.- 106, ch , 1939; CGL 1940 Supp. 8663(108). Am. 1, ch ,

30 Ch. 906 INDICTMENT AND INFORMATION Definitions of terms used in chapter Caption; commencement; amendment Conclusion Subscription and verification of information Form of indictment Form of informations Bill of particulars Name of person other than defendant Description of written instruments Description of written matter Judgments Exceptions Alternative or disjunctive allegations Indirect allegations Libel Perjury and kindred offenses Definitions of terms used in chapter.-in this chapter: (1) The words "person", "defendant" and similar words include, unless a contrary intention appears, a public or private corporation; (2) The term "act" includes omission to act; (3) The word "property" includes any matter or thing other than a person, upon or in respect to which any offense may be committed; ( 4) The words "indictment" and "information", unless a contrary intention appears, include any count thereof; (5) The terms "writing" and "written" include words printed, painted, typed, engraved, lithographed, photographed or otherwise copied, traced or made visible to the eye; (6) The term "the court", unless a contrary intention appears, means the court before which the trial is had; (7) The term "prosecuting attorney" includes the prosecuting officer of any court in the state, his assistants, and attorneys appointed by the court to act in the place of the prosecuting attorney. Hlstory.- 107, ch , 1939; CGL 1940 Supp. 8663(107). cf , Provisions supplemental to this chapter , Indictment or Information for disturbing assembly. 1.01, General definitions , Uniform narcotic drug law , Carrying concealed weapons , Indictment or information for certain nuisances Caption; commencement; amendment.-(!) When an objection is made that an indictment or information does not contain a caption or commencement, a caption may be prefixed to, and a commencement may be inserted in, the indictment or information; and any defect, error, or omission in a caption or commencement may be amended as of course, at any stage of the proceedings, and after moving to quash or pleading to the merits. (2) It is unnecessary to allege that the grand jurors were empaneled, sworn or charged, or that they present the indictment upon their oaths or affirmations. Hl tory.- 108, ch , 1939: CGL 1940 Supp. 8663(108). CHAPTER 906 INDICTMENT AND INFORMATION Indictments in felonies Intent to defraud; how alleged Receiving stolen goods Embezzlement Embezzlement; alleging ownership Evidence in prosecution for forgery or counterfeiting Offenses divided into degrees Surplusage Defects and variances Interpretation of chapter Inspection of indictment, information and record Copy of indictment or information to be furnished defendant Witnesses on indictment or information Conclusion.-The indictment or information need contain no formal conclusion. Hlstory.- 109, ch , 1939; CGL 1940 Supp. 8663(109) Subscription and verification of information.-(1) All informations shall be subscribed by the prosecuting attorney, and verified by the oath of the prosecuting attorney. (2) No objection to any information on the ground that it was not subscribed or verified, as above provided, shall be made or entertained after moving to quash or pleading to the merits. Hlstory.- 110, ch , 1939; CGL 1940 Supp. 8663(110) Form of indictment.-the indictment may be in substantially the following form: In the (state name of court) the day of The State of Florida versus A. B. In the name and by the authority of the State of Florida; The Grand Jurors of the County of charge that A. B. (state offense). Hlstory.- 111, ch , 1939; CGL 1940 Supp. 8663(111) Form of informations.-the information may be in substantially the following form: In the (state name of court) the day of The State of Florida vs. A. B. In the name and by the authority of the State of Florida: X. Y. (title of prosecuting officer) for the 2930 County of charges that A. B. (state offense). Hlatory.- 112, ch , 1939; CGL 1940 Supp. 8663(112). ef.-ch. 832, Issuinl!' worthless cheek and drafta , Form of Information of particular offensea Bill of particulars.-the court, on motion, may order the prosecuting attorney to furnish a bill of particulars, when the indictment or information fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense. Hlstory.- 113, ch , 1989; CGL 1940 Supp. 8668(UI).

31 Name of person other than defendant.-(1) In an indictment, information or bill of particulars it is sufficient for the purpose of identifying any person other than the defendant to state his true name, or to state the name, appellation or nickname by which he has been or is known, or if no better way of identifying such person is practicable, to state a fictitious name, or to state the name of an office or position held by him, or to describe him as "a certain person," or by words of similar import, or in any other manner. In stating the true name of such person or the name by which such person has been, or is known, it is sufficient to state a surname, or a surname and one or more given names, or surname and one or more abbreviations or initials of a given name or names. (2) It is sufficient for the purpose of describing any group or association of persons not incorporated to state the proper name of such group or association, or to state any name or designation by which the group or association has been or is known or by which it may be identified, or to state the name or names of one or more persons in such group or association, referring to the other or others as "another" or "others." (3) It is sufficient for the purpose of describing a corporation to state the corporate name of such corporation, or any name or designation by which it has been or is known, or by which it may be identified, without an averment that the corporation is a corporation or that it was incorporated according to law. ( 4) In no case is it necessary to aver or prove that the true name of any person, group or association of persons or any corporation is unknown to the grand jury or prosecuting attorney. (5) If in the course of the trial the true name of any person, group or association of persons, or corporation, described otherwise than by the true name, is disclosed by the evidence, the court shall cause the true name to be inserted in the indictment, information, bill of particulars and record wherever the name appears otherwise. H lstory.- 114, ch , 1939; CGL 1940 Supp. 8668(114) Description of written instruments. ~When it is necessary in an indictment or information to make an averment relative to any instrument which consists wholly or in part of writing or figures, pictures or designs, it is sufficient to describe such instrument by any name or description by which it is usually known or by which it may be identified, or by its purport, without setting forth a copy or facsimile of the whole or any part thereof. The description in a bill of particulars is sufficient if it sets forth the character and contents of the instrument with such particularity as to enable the defendant to prepare his defense. Blatory.- 115, ch , 1939; CGL 1940 Supp. 8663(115). INDICTMENT AND INFORMATION Ch Description of written matter. When in an indictment or information an averment relative to any spoken or written words or any picture is necessary, it is sufficient to set forth such spoken or written words by their general purport or to describe such picture generally, without setting forth a copy or facsimile of such written words or such picture. In a bill of particulars, the description is sufficient if the defendant is thereby sufficiently informed of the identity of the words or picture concerning which the averment is made so as to enable him to prepare his defense. Hlstory.- 116, ch , 1939; CGL 1940 Supp. 8663(118) Judgments.-In referring in an indictment or information to a judgment or determination of, or a proceeding before, any court or official, civil or military, it is unnecessary to allege the facts conferring jurisdiction on such court or official, but it is sufficient to allege generally that such judgment or determination was given or made or such proceedings had, in such manner as identifies the judgment, determination or proceeding. Bistory.- 117, ch , 1939; CGL 1940 Supp. 8663(117) Exceptions.-No indictment or information for an offense created or defined by statute shall be invalid or insufficient merely for the reason that it fails to negative any exception, excuse or proviso contained in the statute creating or defining the offense. Blstory.- 118, ch , 1939; CGL 1940 Supp. 8663(118). cf , Negative exceptions unnecessary in proseoutlons under uniform narcotic drug law Alternative or disjunctive allegations.-no indictment or information for an offense which may be committed by the doing of one or more of several acts, or by one or more of several means, or with one or more of several intents, or with one or more of several results, shall be invalid or insufficient for the reason that two or more of such acts, means, intents or results are charged in the disjunctive or alternative. Hlstory.- 119, ch , 1939; CGL 1940 Supp. 8663(119) Indirect allegations.-no indictment or information shall be invalid or insufficient for the reason that it alleges indirectly and by inference or by way of recital any matters, facts or circumstances connected with or constituting the offense; provided, however, that such indictment or information contains sufficient facts directly and clearly alleged and charged to constitute the offense being charged in such indictment or information. Hlstory.- 120, ch , 1939; CGL 1940 Supp. 8663(120) Libel.-N o indictment or information for libel shall be invalid or insufficient for the reason that it does not set forth extrinsic facts for the purpose of showing the application to the party alleged to be libeled of the defamatory matter on which the indictment or information is founded. Hlstory.- 121, ch , 1939; CGL 1940 Supp. 8663(121). cf , Criminal prosecution for llbel , Notice condition precedent to prosecution fec" libel.

32 Ch. 906 INDICTMENT AND INFORMATION Perjury and kindred offenses.-no indictment or information for perjury, or for subornation of, solicitation of, conspiracy or attempt to commit perjury shall be invalid or insufficient for the reason that it does not set forth any part of the records or proceedings with which the oath was connected, or the commission or authority of the court or other official before whom the perjury was committed or was to have been committed, or the form of the oath or affirmation, or the manner of administering the same. Hlstory.- 122a, ch , 1939; CGL 1940 Supp (122). cf.-ch. 837, Perjury Indictments in felonies.-it shall not be necessary to allege in an indictment that the offense charged is a felony, or felonious or done feloniously, nor shall any indictment or complaint be quashed or deemed invalid by reason of the omission of the words "felony," "felonious" or "feloniously." llistory.- 122b, ch , 1939; CGL 1940 Supp (123) Intent to defraud; how alleged. When an intent to defraud is required to constitute any offense, it shan be sufficient to allege in the indictment an intent to defraud, without naming therein the particular person or body corporate intended to be defrauded, and on the trial it shall be sufficient, and shall not be deemed a variance, if there appear to be an intent to defraud the United States or any state, county, city, town or parish, or any body corporate, or any public officer in his official capacity, or any copartnership or members thereof, or any particular person. Hlstory.- 122c, ch , 1939; CGL 1940 Supp (124) Receiving stolen goods.-in prosecutions for the offense of buying, receiving, or aiding in the concealment of stolen property, known to have been stolen, it shall not be necessary to aver, nor on the trial thereof to prove, that the person who stole the property has been convicted. Hlstory.- 122d, ch , 1939; CGL 1940 Supp (126) Embezzlement.-In prosecutions for the offense of embezzlement, fraudulently taking or secreting with intent to embezzle or convert the bullion, money, notes, bank notes, checks, drafts, bills of exchange, obligations, or other securities for money, of any person, bank, incorporated company or copartnership by a cashier or other officer, clerk, agent, or servant of such person, bank, incorporated company or copartnership, it shall be sufficient to allege generally in the indictment or information the embezzlement, fraudulent conversion, or taking with such intent, of money to a certain amount, without specifying any particulars of such embezzlement, and on the trial, evidence may be given of such embezzlement, fraudulent conversion or taking with intent, committed within the statutory period of limitations. It shall be sufficient to maintain the 2932 charge in the indictment, and shall not be deemed a variance, if it be proved that any bullion, money, notes, check, draft, bill of exchange or other security for money, of such person, bank, incorporated company, or partnership of whatever amount was fraudulently embezzled, converted or taken with intent by such cashier or other officer, clerk, agent or servant, within the statutory period of limitations. Hlstory.- 122e, ch , 1939; CGL 1940 Supp (126). cf , Larceny of testamentary Instrument; allegation of value of ownership. Ch. 812, Embezzlement Embezzlement; alleging ownership. -If the property, or thing of value embezzled, belongs to several persons or members of a society or voluntary association, it shall be sufficient in the indictment or information to allege the ownership to be in any one or more of any such persons, owners or members, or in the society, association or partnership by its name. Hlstory.- 122f, ch , 1939; CGL 1940 Supp (127) Evidence in prosecution for forgery or counterfeiting.-ln prosecutions for forging or counterfeiting notes or bills of banks, or for uttering, publishing, or tendering in payment as true, any forged or counterfeit bank bills, or notes, or for being possessed thereof with intent to utter and pass the same as true, the testimony of the president and cashier of such banks may be dispensed with, if their place of residence is out of the state or more than forty miles from the place of trial; and the testimony of any person acquainted with the signature of such president or cashier, or who has knowledge of the difference in the appearance of the true and counterfeit bills or notes of such banks may be admitted to prove that such bills or notes are counterfeit. Hlstory.- 122g, ch , 1939; CGL 1940 Supp (128) Offenses divided into degrees.-in an indictment or information for an offense which is divided into degrees it is sufficient to charge that the defendant committed the offense without specifying the degree. Hlstory.- 123, ch , 1939; CGL 1940 Supp. 8663(129) Surplusage.-Any allegation unnecessary under existing law or under the provisions of this chapter may, if contained in an indictment, information or bill of particulars, be disregarded as surplusage. Hlstory.- 124, ch , 1939; CGL 1940 Supp. 8663(130) Defects and variances.-n o indictment or information shall be quashed or judgment arrested or new trial be granted on account of any defect in the form of the indictment or information, or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and em-

33 . ' INDICTMENT AND INFORMATION Ch. 906 barrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense. Hlstor;r.- 125, ch , 1939; CGL 1940 Supp. 8663(131) Interpretation of chapter.-nothing contained in this chapter shall be so construed as to make invalid or insufficient any indictment or information which would have been valid and sufficient under the law existing prior to June 12, Histoey.- 126, ch , 1939; CGL 1940 Supp. 8663(132) Inspection of indictment, information and record.-all indictments, informations and the records thereof shall be in the custody of the clerk of the court to which they are presented, and shall not be inspected by any person other than the judge, clerk, the attorney general and the prosecuting attorney until the defendant is in custody or has been admitted to bail, or until one year has elapsed between the return of an indictment, or the filing of an information, after which time the same shall be open for inspection by the public, unless otherwise ordered by the court having jurisdiction. Hlstoey.- 127, ch , 1939; CGL 1940 Supp. 8663(188). Am. 1, ch , Copy of indictment or information to be furnished defendant.-every person who has been indicted or informed against for an offense, shall, upon application to the clerk, be furnished with a copy of the indictment or information, together with the indorsements thereon, at least twenty-four hours before he is required to plead thereto, and he shall not be required to plead to such indictment or information if it has not been so furnished to him. A failure to furnish such copy shall not affect the validity of any subsequent proceeding against the defendant if he pleads to the indictment or information. Hlstor;r.- 128, ch , 1939; CGL 1940 Supp. 8663(184) Witnesses on indictment or information.-it shall not be necessary to indorse on any indictment or information the names of the witnesses on whose evidence the same is based, but upon motion of defendant, the court shall order the prosecuting attorney to furnish the names of such witnesses. Blstorr.- 129, ch, 10554, 1939; COL 19t0 Supp. 1883(136). 2933

34 Ch. 907 PROCESS UPON INDICTMENT AND INFORMATION CHAPTER 907 PROCESS UPON INDICTMENT AND INFORMATION Capias and amoun11 of bond When summons may be issued for an individual Summons to be issued when defendant is a corporation Capias and amount of bond.-upon the filing of an indictment or information, if the person named therein is not in custody or at large on bail for the offense charged, the judge shall direct the clerk to issue immediately or when so directed by th~ prosecuting attorney, a capias for the arrest of such person. The judge upon the filing of the information or indictment, shall indicate the amount of bail, if the offense is bailable, in which case an indorsement shall be made on the capias and signed by the clerk, to the following effect: The defendant is to be admitted to bail in the sum of dollars. Hlsto!1<.- 180, ch. 1i554, 1939: CGL 1940 Supp. 8663(186). ct , BalL When summons may be issued for an individual.-when an indictment has been found or an information filed against a person charging a misdemeanor only, if he is not in custody or at large on bail for the offense charged, the court or a judge thereof shall direct the clerk to issue a summons instead of a warrant, if the court or judge> has reasonable ground to believe that the person will appear in response to a summons. Hlatoey.- 181, ch , 1989; CGL 1940 Supp. 8663(187) Disposition of defendant upon arrest Criminal cases in circuit court to be tried first Summons to be issued when defendant is a corporation.-when au indictment has been found or an information filed against a corporation the court or a judge thereof shall direct the clerk to issue a summons to secure its appearance to answer the indictment or information. Hlstory.- 182, ch , 1939; CGL 1940 Supp. 8663(138) Disposition of defendant upon arrest.-if the defendant is not bailable in respect of the offense designated in the capias then upon being arrested he shall be immediately delivered into the custody of the sheriff of the county in which the indictment or information is filed. If the defendant is bailable, he shall be allowed his liberty upon giving bond ib the amount designated on the capias. Hlstory.- 13Sa, ch , 1989; CGL 1940 Bupp (139) Criminal cases in circuit court to be tried first.-all cases on the criminal docket at each term of the circuit court shall be tried first, if the same can be so tried without injury to the interests of the state or of the prisoner. and cases presented during the t~rm by the grand jury may be tried, if proper. at any time during the same term. Hletor;v.-118Sb, oh , 1939; CGL 1940 Bupp. se68- (UO). 2934

35 Arraignment of defendant; how made Effect of failure to arraign or irregularity of arraignment. ARRAIGMENT Ch. 908 CHAPTER 908 ARRAIGNMENT Arraignment of defendant; how made.-when an indictment has been found or an information filed against a person he shall, before he is put on trial for the offense charged, be arraigned by having the charge stated to him by the prosecuting attorney in open court and by being called upon to plead thereto. If the defendant so demands before he pleads, the indictment or information shall be read to him by the prosecuting attorney. An entry of the arraignment shall be made of record. RI.aor:r.-1184, ch , 193&; CGL 1940 Supp. 8683(141). cf , Parent or guardian to be notlfled before trial of offense against minor Standing mute or pleading evasively; failure of a corporation to appear Effect of failure to arraign or irregularity of arraignment.-neither a failure to arraign nor an irregularity in the arraignment shall affect the validity of any proceeding in the cause if the defendant pleads to the indictment or information or proceeds to trial without objection to such failure or irregularity. Rlator;r.- 185, ch , 1989; CGL 1940 Supp. 8663(142) Standing mute or pleading evasively; failure of a corporation to appear.-if the defendant is a corporation and fails to appear or if any defendant stands mute or pleads evasively a plea of not guilty shall be entered of record. Rt.tor;r.-1188, ch , 1989; CGL 1940 Supp. 8888(148). ef , Certain pleu abollahecs; motion w quash eu~tuted. 2935

36 Ch. 909 MOTION TO QUASH AND PLEAS CHAPTER 909 MOTION TO QUASH AND PLEAS Time to move to quash or plead Certain pleas abolished; motion to quash substituted Motion to quash; form and contents Arrest on capias based on indictment or information; habeas corpus; motion to quash; preliminary hearing. OD9.05 Effect of sustaining the motion to quash Effect of failure to move to quash; exceptions Form of plea; failure to enter of record Plea of guilty; presence of defendant Plea of guilty of lesser offense or lesser degree Effect of plea of guilty of an offense divided into degrees Plea of guilty of an offense divided into degrees; determination of the degree Time to move to quash or plead. Either prior to or upon being arraigned, the defendant shall, unless the court grants him further time, either move to quash the indictment or information or plead thereto, or do both. If he moves to quash, without also pleading, and the motion is withdrawn or overruled, he shall immediately plead. Hlator;, , ch , 1939; CGL 1940 Supp. 8663(1«) Certain pleas abolished; motion to quash substituted.-pleas to an indictment or information, other than pleas of nolo contendere, guilty, or not guilty, are abolished. All defenses heretofore available to a defendant by plea, other than pleas of nolo contendere and not guilty, shall be taken only by motion to quash the indictment or information, whether the same relate to matters of form or substance, former acquittal, former jeopardy, or any other defense which heretofate was raised by plea. Hlator;r.- 138, ch , 1939; CGL 1940 Supp. 8663(145). cf , Standing mute or pleading evasively Motion to quash; form and contents. -(1) The motion to quash, if a court reporter is present, may be made orally; otherwise it shall be in writing and signed by defendant or his attorney. It shall specify distinctly the ground of objection relied on. If made orally, the court reporter shall transcribe the same, and file it with the clerk. When made in writing it shall be first filed with the clerk, before argument, and a copy served on the prosecuting attorney. (2) The motion to quash may be filed at any time after information or indictment is filed, and with permission of the court, may, on notice to prosecuting attorney, be heard and disposed of either in term time or vacation. However, at such hearing the defendant must be present, if a felony is charged. (3) The order on the motion to quash shall be filed in the cause and entered of record. Hlator:r.- 139, ch , 1939; CGL 1940 Supp. 8663(146) Arrest on capias based on indictment or information; habeas corpus; motion to quash; preliminary hearing.-when an indict Plea of guilty; determination of punish ment Withdrawal of plea of guilty Plea of guilty before indictment or information filed Plea of guilty after indictment or information filed Plea of not guilty; its operation in denial Defense of insanity; notice Discovery and production of documents and things for inspection, copying or photographing Effect of failure to enter plea Time to prepare for trial Appointment of counsel in capital cases Trial pending writ of habeas corpus Trial of persons in custody. ment or information is filed and a defendant is in custody under a capias he may apply for a writ of habeas corpus, attacking said indictment or information; or he may move to quash the indictment or information and bring it 011 to be heard before the trial court having jurisdiction. If a defendant so in custody upon a capias as aforesaid is confined in jail for thirty days after his arrest, without trial, he may apply to the trial court ha~ ing jurisdiction for and be allowed a preliminary hearing. Hl&tor;r.- 140, c:h , 1939; CGL 1940 Supp. 8668(147). Am. 1, ch , Effect of sustaining the motion to quash.-if the motion to quash is sustained the court may order that another information be filed or that the matter be again submitted to a grand jury, or if the matter is such that an information might have been filed aa-ainst the defendant if he had not been indicted, that an information be filed for the offense charged in the indictment. If one of the aforementioned orders is made, the defendant, if in custody, shall remain so unless he shall be admitted to bail. If such order is not made or if having been made, a new indictment ia not found by the same or the next succeedin8' grand jury having authority to inquire into the offense, or another information not filed with in a time to be specified in the order, or within such further time as the court may allow for good cause shown, the defendant, if in custody, sh~>ll be discharged therefrom, unless he is in custody on some other charge; if he has been released on bail he and his sureties are exonerated, and if money or bonds have been deposited as bail such money or bonds shall be refunded. Hlstory.- 141, ch , 1939; CGL 1940 Supp. 8663(148) Effect of failure to move to quash; exceptions.-if the defendant does not move to quash the indictment or information before or at the time he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash. If, however.

37 the defendant learns after he has pleaded or has moved to quash on some other. ground that the offense with which he is now charged is an offense for which he has been pardoned, or of which he has been convicted or acquitted or been in jeopardy or for which he has been granted immunity the court may in its discretion entertain at any time IJefore verdict a motion to quash or motion for directed verdi<'t on the ground of such pardon, conviction, acquittal, jeopardy or immunity. Hlstory.- 142, ch , 1939; CGL 1940 Supp. 8663(149). cf , Immunny from prosecution Form of plea; failure to enter of record.-every plea shall be pleaded o.rally in open court and shall be immediately entered of record; but a failure so to enter it shall not affect the validity of any proceeding in the cause. Hlstory.- 143, ch , 1939; CGL 1940 Supp. 8663(150) Plea of guilty; presence of defen-. dant.-except where the defendant is a corporation, a plea of guilty to a charge of felony sh&ll not be accepted unless the defendant is present. Hlstory.- 144, ch , 1939; CGL 1940 Supp. 8663(151) Plea of guilty of lesser offense or lesser degree.-the defendant, with the consent of the court and of the prosecuting attorney, may plead guilty of any lesser offense than that charged which is included in the offense charged in the indictment or information, or of any lesser degree of the offense charged. Hlstory.- 145, ch , 1939; CGL 1940 Supp. 8663(162) Effect of plea of guilty of an offense divided into degrees.-whcx-e an indictment or information charges an offense which is divided into degrees, without specifying the degree, a plea of guilty which docs not specify any degree is a plea of guilty of the highest degree of the offense charged. History.- 146, ch , 1939; CGL 1940 Supp. 8663(163) Plea of guilty of an offense divided into degrees; determination of the degree. Where an indictment or information charges an offense which is divided into degrees without specifying the degree, if the defendant pleads guilty generally the court shall, before accepting the plea, examine witnesses to determine the degree of the offense of which the defendant is guilty. Hlstory.- 147, ch , 1939; CGL 1940 Supp. 8663(154) Plea of guilty; determination of punishment.-where the defendant pleads guilty to an indictment or information, if the court accepts the plea and has discretion as to the punishment fo-r the offense, it may hear witnesses to determine what punishment shall be imposed. Hlstory.- 148, ch , 1939; CGL 1940 Supp. 8663(165) Withdrawal of plea of guilty.-the court may in its discretion at any time before sentence permit a plea of guilty to be withdrawn and, if judgment of conviction has been MOTION TO QUASH AND PLEAS Ch entered thereon, set aside such judgment, and allow a plea of not guilty, or, with tne consent of the prosecuting atto:ttney, allow a plea of guilty of a lesser included offense, or of a les~;er degree of the offense charged, to be substituted for the pjea of guilty. Hlstory.- 149, ch ; CGL 1940 Supp. 8663(156) Plea of guilty before 1ndictment or intormation filed.-if a person who has been held to answer for an offense desires to plead guilty thereto before he has been informed against he may so inform the court having ju: isdiction of the offense, wl;ereupon the court shall direct the prosecuting attorney to file an information charging the defendant with such offense, and, upon the filing of such information, and arraignment thereon, the defendant may plead guilty thereto. Hlstory.- 150, ch , 1939; CGL 1940 Supp. 8663(157) Plea of guilty after indictment or information filed.-lf a person who has been indicted or informed against for an offense, but who has not been arraigned desires to plead guilty thereto, he may so inform the court having jurisdiction of the offense, and such court shall as soon as conve!iient, arraign the defendant and permit him to plead guilty to the indictment or information. History.- 151, ch , 1939; CGL 1940 Supp. 8663(158) Plea of not guilty; its operation in denial-a plea of not guilty is a denial of every material allegation in the indictment or information. Hlstory.- 152, ch , 1939; CGL 1940 Supp. 8663(159) Defense of insanity; notice.-(1) When in any criminal case it shall be the intention of the defendant to rely upon the defense of insanity, no evidence offered by the defendant for the purpose of establishing such insanity shall be admitted in such case unless advance notice of such defense shall have been given by the defendant as hereinafter provided. If the defendant upon arraignment, or prior thereto, notifies the court that he will rely upon insanity as one of his defenses, then the court will hear the parties and require the defendant to file, within such time as may be fixed by the court, a bill of particulars showing as nearly as he can the nature of insanity he expects to prove and the names of the witnesses by whom he expects to p<ove such insanity. (2) Upon the filing of said bill of particulars by the defenda11t, upon mo!:ion of the prosecution, the court, after bearir.g, may cause the defendant to be examinea in the prrsence of attorneys for the state and for the defendant, by one or more disinterested qualified experts, not exceeding three, appointed by the court, at such time and place as may be designated in the order of the court, as to the sanity, or insanity, of the defmdant at th-3 time of the commission of the alleged offense and subseauent thereto. The procedure shall follow that set forth in chapter 917.

38 Ch. 909 MOTION TO QUASH AND PLEAS (3) Upon good cause shown for the omission of the notices and procedure as to the defense of insanity, as here set forth, the court may in its discretion permit the introduction of evidence of such defense. Hlatory.- 153, ch , 1939; CGL 1940 Supp. 8663(160). cf , Proceeding to determine mental condition of defendant Discovery and production of documents and things for inspection, copying or photographing.-when a crime has been committed and the evidence of the state shall relate to ballistics, fingerprints, blood, semen, or other stains, or documents, papers, books, accounts, letters, photographs, objects, or other tangible things, upon motion t>howing good cause therefor, and upon notice to the prosecuting attorney, the court in which the action is pending, whether the committing magistrate's court or the court having jurisdiction to try the cause, may order the state to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated papers, books, accounts, letters, photographs, objects, or other tangible things. In examinations to be conducted by representatives of the state, as to ballistics, fingerprints, blood, semen, and other stains, the defendant, upon motion and notice, as aforesaid, shall be permitted under order of court, to be present, or have present, an expert of his own selection, during the course of such examination. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs, and may prescribe such terms and conditions as are just. Hlstory.- 154, ch , 1939; CGL 1940 Supp. 8663(161). cf , Justification ot trial court to hear motion. ~09.19 Effect of failure to enter plea.-the fact that the defendant did not plead shall not affect the validity of any proceeding in the: cause if the defendant proceeds t.o trial without a plea. Hlstory.- 155, ch , 1939; CGL 1940 Supp. 8663(162) Time to prepare for trial.-after a plea of not guilty the defendant is entitled to a reasonable time in which to prepare for trial. Hlstory.- 15Et, ch , 1939; CGL 1940 Supp. 86Et8(1Eta) Appointment of counsel in capital cases.-in all capital cases where the defendant is insolvent, the judge shall appoint such counsel for the defendant as he shall deem necessary, and shall allow such compensation as he may deem reasonable, such sum to be paid by the county in which the crime was committed. Counsel, so appointed, may in the event of conviction and sentence of death, appeal the case to the supreme court, and prosecute said appeal to its final conclusion with diligence; and until the supreme court has disposed of the appeal, no compensation shall be allowed to such counsel. If counsel first appointed is unable for any reason to perfect and prosecute the appeal, the court may relieve him from such duty, but shall appoint other counsel for such purpose. When counsel so appointed by the court, in capital cases, completes the duties imposed by this section, such counsel shall file a written report as to the duties performed by him and apply for discharge by the court. The compensation of counsel for the defendant, at the trial, shall not exceed five hundred dollars; and defendant's counsel's compensation on appeal, shall not exceed five hundred dollars additional. Hlstory.- 157, ch. 195M, 1989; CGL 1940 Supp. 8663(164). Am. 1, ch , Trial pending writ of habeas corpus. -Whenever in any criminal prosecution, a writ of habeas corpus is applied for, by any person charged with any criminal offense, and the accused shall have been remanded to custody by the court to which such application is made, a supersedeas of such order made upon appeal being taken to the appellate court, shall not preclude the state from proceeding with the prosecution and trial of the accused pending the decision in such matter of habeas corpus by the appellate court, but in such cases the state may proceed with the prosecution and trial of the accused in the same manner as if a.n appeal had not been taken in the habeas corpus proceeding. Should the accused be convicted of the charge, then the court shall withhold imposition of sentence aud final judgment until the appellate court shall have determined the issues presented in the matter of habeas corpus. Hlstory.- 158, ch , 1939; CGL 1940 Supp. 8663(1615) Trial of persons in custody.-when an indictment has been returned or an information filed for a felony and the accused be in custody, the court shall cause him to be arraigned and tried at the same term, during which said indictment or information i& filed, unless good cause be shown for a continuance. Hlatory.- 159, ch , 1939; CGL 1940 Supp. 8663(166). 2938

39 JURISDICTION AND VENUE Ch r.. - ~ CHAPTER 910 JURISDICTION AND VENUE 910,01 Offense committed elsewhere but consummated here Offense in or against aircraft Place of trial generally Where accessory in one county and offense committed in another Where offense committed partly in one and partly in another county Where person in one county commits offense in another Offense committed elsewhere but consummated here.-when the commission of an offense committed elsewhere is consummated within the boundaries of this state, the offender shall be liable to punishment here, though he was out of the state at the commission of the offense charged, if he consummated it in this state through the intervention of an innocent or guilty agent, or by any other means prcceeding directly from himself. The jurisdiction in sach case, unless otherwise provided by law, shall be in the county in which the offense was consummated. Hlstory.- 160, ch , 1939; CGL 1940 Supp. 8663(167). cf , Provisions supplemental to this chapter Offense in or against aircraft.-any person who commits an offense in or against any aircraft while it is in flight over this state may be tried in this state. The trial in such case may be in any county over. which the aircraft passed in the course of such flight. Hletory.- 161, ch , 1939; CGL 1940 Supp. 8668(168). cf.- 11, Declaration of rights, Florida constitution. A.c cused has the right to be tried In the county where the crime was committed Place of trial generally.-in all criminal prosecutions the trial shall be in the county where the offense was committed unless otherwise provided by law. History.- 162, ch , 1939; CGL 1940 Supp. 8663(169). cf , Prosecution for making false statement to obtain goods on credit Where accessory in one county and offense committed in another.-where a person in one county aids, abets or procures the commission of an offense in another county he may be tried for the offense in either county. Hlstory.- 163, ch , 1939; CGL 1940 Supp. 8663(170). cf , Jurisdiction and venue, accessory before the fact , Accessory after the fact Where offense committed partly in one and partly in another county.-where several acts are requisite to the commission of an offense, the trial may be in any county in which any of such acts occurs. History.- 164, ch , 1939; CGL 1940 Supp. 8663(171) Where person in one county commits offense in another.-where a person in one county commits an offense in another county the trial may be in either county. Hletory.- 165, ch , 1939; CGL 1940 Supp. 8668(172) Where offense committed on railroad train or other vehicle Where offense committed on vessel Where injury inflicted in one county and death occurs in another Where stolen property brought into another county Conviction or acquittal bar to prosecution Where offense committed on railroad train or other vehicle.-where an offense is committed on a railroad train or other public or private vehicle while in the course of its trip the trial may be in any coanty through which such train or other vehicle passed during such trip. Hlstory.- 166, ch , 1939; CGL 1940 Supp. 8663(173) Where offense committed on vessel~ -Where an offense is committed on board a vessel in the course of its voyage, the trial may be in any county through which the vessel passed during such voyage. Hlstory.- 167, ch , 1939; CGL 1940 Supp. 8663(174). cf.- 11, Declaration of rights, Florida constitution Where injury infjicted in one county and death occurs in another.-'where a person inflicts an injury upon another person in one county from which the injured person dies in another county, the trial for the homicide may be in either county. Hlstory.- 168, ch , 1939; CGL 1940 Supp. 8668(176) Where stolen property brought into another county.-where a person obtains property by larceny, robbery, false pretense or embezzlement in one county and brings the property so obtained into any other county or counties, he may be tried in the county in which he obtains the property or in any other county into which he brings it. History.- 169, ch , 1939; CGL 1940 Supp. 8663(178) Conviction or acquittal bar to prose cution.- (1) No person shall be held to answer on a second indictment or information for a crime for which he has been acquitted, but such acquittal may be pleaded by motion in bar of any subsequent prosecution for the same crime, notwithstanding any defect in the form or circumstances of the indictment or information. (2) Where a person may be tried for aa offense in two or more counties, a conviction or acquittal of the offense in ont; county shall be a bar to a prosecution for the same offense in another county. Hlstory.- 170, ch , 1939; CGL 1940 Supp. 8663(177). cf , Former acquittal or conviction of violation of uniform narcotic drug law.

40 C:h; 911 CHANGE OF JUDGE AND REMOVAL OF CAUSE CHAPTER 911 CHANGE OF JUl>GE AND REMOVAL OF CAUSE Change of judge. Removal of cause. Application for removal of cause; how and when made. Service of copy of application for removal of cause. Duty of judge upon application for removal of cause Change of judge.-(1) On a prosecution by indictment or information, the prosecuting attorney or the defendant may apply for a change of judge by making and filing an affidavit that he fears a fair trial cannot be had in the court where the case is pending on account of the prejudice of the judge of said court against the applicant, or in favor of the adverse party, and thereupon, such judge shall proceed no further therein, but another judge shall be designated in a manner prescribed by the laws of Florida for the substitution of judges for the trial of causes where the pre ~iding judge is disqualified. (2) The presiding judge may examine the affidavits supporting the motion to disqualify him for prejudice, to determine their legal sufficiency, but shall not pass on the truth of the facts alleged, nor adjudicate the question of his disqualification. (3) Every affidavit shall state the facts and the reasons for the belief that a.1y bias or prejudice exists, and such affidavit shall be filed not less than ten days before the time the case is called for trial, or good cause shown for the failure to so file same within such time. (4) Any affidavit so filed shail be accompanied by a certificate of counsel of record that such affidavit and application ~re ma~e in good faith, and the facts statt..d as a bas!s for making the affidavit shall be supported m substance by affidavit of at least two reputable citizens of the county, not of kin to the defendant or of counsel for the defendant; provided that when the prosecuting a~torney or defen'dant shall have suggested the disqualification of a trial judge and an order shall have been made admitting the disqualification of such judge, and another JUdge shall haye been assigned and transferred to act in lieu of the judge so held to be disqu<jiified, th~:: judge so ase.!gned and transferred!'hail not be disqualified on account of alleged '!)rejudice against the party making the suggestion in the first instance, or in favor of the adverse party, unless such judge shall admit and hold that it is then a fact that he, the said judge, does not stand fair and impartial between the parties and if such judge shall hold, rule and adjudge that he does stand fair and impartial as between the parties and their respective interests, he shall cause such ruling to be entered on the malutes of the court, and shall proceed to preside as judge in the pending cause. The ruling Pr0ceedings on removal, if defendant ia 1n custody Order of removal; recording and trans mission. Duty of witnesses. Removal of cause where several defendants. Duty of prosecuting attorney, and court to which cause removed. of such judge may be reviewed by the appellate court, as are other rulings of the trial court. Hlstory.- 171, ch , 1939; CGL 1940 Supp. 8663(178); am. 7, ch , cf , Designation of judge to hear cause when order ot dlsq uallflca tlon entered Removal of cause.-(1} On a prosecution by indictment or information the state or the defendant may apply for re:o:noval of the cause on the ground that a fair and impartial trial can not be had for any reason other than the interest or prejudice of the trial judge. (2) In all criminal cases pending in any of the criminal courts of record in any county in this state, changes of venue may be had and granted upon the same terms and for the same reasons and grounds and in the same manner as is now provided by law for changes of venue in causes pending in the c;rcuit courts. When any change of venue is granted in any cause in any criminal court of record, the venue shah be changed to the criminal court of record, in some adjoining county if there be one, but if there shall be no criminal court of record in any adjoining county, the venue shall be changed to the circuit court of some adjoining county; provided, that the venue in cases of misdemeanor shall be changed to the county court of some atljoining county, if there be a county court therein. Upon such change the original papers in the cause, together with a certified copy of the order changing the venue, shall forthwith be forwarded by the clerk to the court to which such venue is changed, and he sl:all p!"eserve in his office certified copies of all such criginal papers so transmitted. Hlstory.- 172, ch , 1939; CGL 1940 Supp. 8663(179) Application for remonl of cause; how and when made.-the application for removal of the cause shall be in writing and shall be filed not less than ten days before the trial of said cause unless good cause be shown for the failure so to file same within such time. It shall state the ground:; on which it is based and shall also state tee facts constituting the grounds. When made by the state, it shall be verified by affidavit of the prosecuting attorney; when made by Lhe defendant, it shall be verified by his affidavit and when the defendant is represel.lted by counsel, the affidavit shall be accompanied by a certificate of counsel of record that said affidavit and application are made in good faith. Hlston , ch , 1939; CGL 1940 Supp. 8663(180).

41 CHANGE OF JUDGE AND REMOVAL OF CAUSE eli Service of copy of appli<-at on for remgval of cause.-upon the filing of an application for removal of the cause a copy there- of and a copy of any supporting affidavit shah be served upon the other party prior to the hearing of the application. History.- 174, ch , 1939; CGL 1940 Supp. 8663(181) Duty of judge upon aj.l-phcation for removal of cause.-where appli;:;ation is made for removal of the cause the court shall hear the application and shall either grant or refuse it after considering the facts set forth therein and the affidavit accompanying it and any other affidavits or counter affidavits that may be filed after hearing any witnesg prod ;1ced by either side. If the court grants the application it shall make an order removing th., cause to the proper court of some othc.r convenient county where a fair and impartial tnal can be had. History.- 175, ch , 1939; CGL 1940 Supp. 8663(182) Proceedings on removal, if defendant is in custody.-if the defendant is in custody, the order shall direct that he be forthwith delivered to the custody of the bheriff of the county to which the cause is removea. Hlstory.- 176, ch , 1939; CGL 1940 Supp. 8663(183) Order of remonl; recording and transmission.-the clerk shall enter on the minutes the order of removal and shall transmit to the court to which the cause is removed a certified copy of the order of remo9a1 and of the record and proceedings and of the undertakings of the witnesses and the accused. Hlstory.- 177, ch , 1939; CGL 1940 Supp. 8663(184) Duty of witnesses.-where the cause is removed to another court the witnesses who have entered into undertakings to appear at the trial shall, on notice of such removal, attend the court to which the cause is removed at the time specified in the order of removal. A failure so to attend shall work a forfeiture of the undertaking. History.- 178, ch , 1939; CGL 1940 Supp. 8663(185) Removal of cause where several defendants.-if there are several deie:r.:dants and an order is made removing the cause on the application of one or more but not au of "them, the other defendants shall be trb;d aud ~u proceedings had against them in tr.e county in wluch the cause is pending in at! respects as if no order of removal had been made as to any defendant. Hiatory.- 179, ch , 1939; CGL 1940 Supp. 8663(186) Duty of prosecuting attorney, an~ court to which cause removed.-{1) The court to which the cause is removed sha!l t roc.eed to trial and judgment therem as if tllf cause had originated in such court. If it is necessary to have any of the <lriginal pleadmgs or other papers before such cou1 t:, Lhe court from which the cause is removed shah at any time upon application of the prosecuting attorney or the defendant order su ~h papers or pl~adings to be transmitted by the clerk. a certified copy thereof being retained. {2) The prosecuting attorney of the court to which the cause is removed, may am~nd the information, or file a new information, and such new information shall be entitled in the county in which the trial is had, but the allegation as to the place of commirsion of the crime, shall cover the county in which the crime was actually committed. Hlatory.- 180, ch , 1939; CGL 1940 Supp. 8663(187). 2941

42 Ch.!J12 WAIVER OF JURY TRIAL CHAPTER 912 WAIVER OF JURY TRIAL When trial by Jury may be waived When trial by jury m~y be waived. -In all cases except where a sent'~nce of death may be imposed trial by jury may be waived by the defendant. Such waiver.shall be made in open court and an indorsement thereof made on the indictment or inf.1rmation and signed by the defendant. Hlatoey.- 181, ch , 1989; CGL 1940 Supp. 8663(188). 2942

43 Challenge to panel Examination of j\irors Grounds for challenge to individual jurors for cause When challenge to individual juror to be made How challenge to individual jl.li'or to be made Challenge to panel.-the state or the defendant may challenge the panel or an individual juror. A challenge to the panel may be made only on the ground that the jurors were not selected or drawn according to law. Challenges to the panel shall be made and decided before any individual juror is examined, unless ordered by the court. A challenge to the panel shall be in writing and shall. specify the facts constituting the ground of challenge. Challenges to the panel shall be tried by the court. Upon the trial of a challenge to the panel the witnesses shall be examined on oath by the court and may be so examined by either party with the permission of the court. If the challenge to the panel is sustained, the court shall discharge the panel. If the challenge is not sustained, the individual jurors shall be called. Hlstory.- 182, ch , 1939; CGL 1940 Supp, 8663(189). cf , Provisions supplemental to this chapter Examination of jurors.-(1) The jurors shall be sworn, either individually or collectively, as the court may decide, to answer truthfully all questions put to them regarding their competence to serve as jurors. The court shhll then examine each juror individually, except that, with the consent of both parties, it may examine the jurors collectively. Counsel for both state and defendant shall be permitted to propound pertinent questions to the juror after such examination by the court. (2) If the court after the examination of any juror is of the opinion that he is incompetent the court shall excuse him from the trial of the cause. If, however, the court does not excuse the juror, either party may then challenge him, as hereafter provided. Hlstory.- 183, ch , 1939; CGL 1940 Supp. 8663(190) Grounds for challenge to individual jurors for cause.-a challenge for cause to an individual juror may be made only on the ground: (1) That the juror has not the qualifications required by law; (2) That the juror is of unsound mind or has such a defect in any organ of the body as renders him incapable of performing the duties of a juror; (3) That the juror entertains such conscientious convictions as would pre1d1de his finding the defendant guilty: TRIAL JURY Ch. 913 CHAPTER 913 TRIAL JURY How challenge to individual juror to be tried Examination of witness on trial of challenge to individual juror Number of peremptory challenges Effect of sustaining challenge to individual juror Number of jurors and alternate jurors Oath of jurors. ( 4) That the juror served on the grand jury which found the indictment or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment or information; (5) That the juror served on a jury formerly sworn to try the defendant on the same charge; (6) That the juror served on a jury which has tried another person for the offense charged in the indictment or information; (7) That the juror served as a juror in a civil action brought against the defendant for the act charged as an offense; (8) That the juror is a party adverse to the defendant in a civil action, or has complained against or been accused by him in a criminal prosecution; (9) That the juror is related by blood or marriage within the third degree to the defendant or the attorneys of either party or to the person alleged to be injured by the offense charged or on whose complaint the prosecution was instituted; (10) That the juror has a state of mind in reference to the cause or to the defendant or to the person alleged to have been injured by the offense charged, or to the person on whose complaint the prosecution was instituted, which will prevent him from acting with impartiality; but the formation of an opinion or impression regarding the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the evidence; (11) That the juror was a witness either for the state or the defendant on the preliminary examination or before the grand jury or is to be a witness for either party at the trial; (12) That the juror is one of the sureties on defendant's bail bond in the cause. Hlstory.- 184, ch , 1939; CGL 1940 Supp. 8663(191). cf , , Qualification of jurors , Challenge in civil cases When challenge to individual juror to be made.-a challenge to an individual juror may be made only before the juror is sworn to try the cause; except that the court may for good cause permit it to be made after the juror is sworn, but before any evidence is presented. Hlatory.- 185, ch , 1989; CGL 1940 Supp. 8663(192).

44 Ch. 913 TRIAL JURY How challenge to individual juror to be made.-a challenge to an individual juror may be oral. When a juror is challenged for cause the ground for challenge shall be stated. History.- 186, ch , 1939; CGL 1940 Supp. 8663(193) How challenge to individual juror to be tried.-challenges to an individual juror shall be tried by the court. Histor;v.- 187, ch , 1939; CGL 1940 Supp. 8663(194) Examination of witness on trial of challenge to individual juror.-upon the trial of a challenge to an individual juror for cause the juror challenged and any other material witnesses produced by the parties shall be examined on oath by the court and may be so examined by either party. History.- 188, ch , 1939; CGL 1940 Supp. 8663(195) Number of peremptory challenges. The state and the defendant shall each be allowed the following number of peremptory challenges: (1) Ten, if the offense charged is punishable by death or imprisonment for life; (2) Six, if the offense charged is a felony not punishable by death or imprisonment for lif~; (3) Three, if the offense charged is a misdemeanor. ( 4) If two or more defendants are jointly tried each defendant shall be allowed the number of peremptory challenges sp~cified above and in such case the state shall be allowed as many challenges as are allowed to all of the defendants. llistory.- 189, ch , 1939; CGL 1940 Supp. 8663(196) Effect of sustaining challenge to individual juror.-if a challenge to an individual juror is sustained he shall be discharged from the trial of the cause. llistory.- 190, ch ; CGL 1940 Supp. 8663(197) Number of jurors and alternate jurors.- (1) Twelve men shall constitute a jury to try all capital cases, and six men shall constitute a jury to try all other criminal cabes. (2) When in the opinion of the court a trial is likely to be a protracted one, the presiding judge of such court may direct that one or two jurors, in addition to the regular panel, be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider 1ts verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination, shall take the same oath and shall have the same functions, powers, faciiities and privileges as the principal jurors. An alternate juror, who does not replace a principal juror, shall be discharged at the time the jury retires to consider its verdict. If one or two alternate jurors are called, each party is entitled to one peremptory challenge in addition to those otherwise allowed by law for each alternate juror so called. The additional peremptory challenge may be used only against th2 alternate juror and the other peremptory chtillenges allowed by law shah not be used aga.inst the alternate jurors. Histor;v.- 191, ch , 1939; CGL 1940 Supp. 8663(198) Oath of jurors.-the following oath shall be administered to the jurors: "You do solemnly swear (or affirm) that you will well and truly try the issues between the State of Florida and the defendant whom you shall hav.a in charge and a true verdict render according to the law and the evidence, so help you God." If any juror affirms, the clause "So help you God" shall be omitted. History.- 192, ch , 1939; CGL 1940 Supp. 8663(199). 2944

45 PRESENCE OF DEFENDANT-... Ch. 914 CHAPTER 914 PRESENCE OF DEFENDANT Presence of defendant when prosecution for felony Presence of defendant when prosecution for felony.-in all prosecutions for a felony the defendant shall be present: (1) At arraignment; (2) When a plea is made; (3) At the calling, examination, challenging, impaneling and swearing of the jury; ( 4) At all proceedings before the court when the jury is present; (5) When evidence is addressed to the court out of the presence of the jury for the purpose of laying the foundation for the introduction of evidence before the jury; (6) At a view by the jury; (7) At the rendition of the verdict; (8) Persons prosecuted for misdemeanors may, at their own request, by leave of court, be tried in their absence from the court. Provided, however, that upon the beginning of the trial of a defendant upon any charge contained in any indictment or information and the defendant being present thereat, if said defendant shall thereafter, during the progress of said trial, or before the verdict of the jury shall have been returned into court, voluntarily, without leave of court first had and obtained, absent himself from the presence of the court, the trial of said cause or the return of the verdict of the jury in said case shall not thereby be postponed or delayed, but said trial, the submission of said case to the jury for verdict, and the return of the verdict!thereon shall proceed in all respects as though the defendant were present in court at all times. Hlstoey.- 193, ch , 1939; CGL 1940 Supp, 8663(ll00). cf , View by jury , Grounds for new trial. 2945

46 Ch. 915 DISMISSAL OF PROSECUTION CHAPTER 915 DISMISSAL OF PROSECUTION Speedy trial; reduction of ball: discharge of prisoner Speedy trial; reduction of bail; discharge of prisoner.-(!) When a person has been committed to custody to answer any criminal charge, and shall apply to the court on the first day of the term to which he has been committed, that he desires to be brought to his trial before the end of the term, and shall not be indicted or informed against at that term, unless it appear to the satisfaction of the court that the witnesses could not be procured, the court shall set him at liberty upon his giving bail in a reasonable penalty to appear at the next term. If the person in custody be not indicted or informed against in the second term, unless the attendance of witnesses is prevented by himself, he shall be discharged from imprisonment; and if he is not tried at or before the third term after the date he is first committed, he shall be forever discharged from the crime. (2) When a person has been arrested ana released on bond, and thereafter for three successive terms of court, files a written demand for trial (serving a copy on the prosecuting attorney) and he is not brought to trial at or before the third full term after the date he is first committed, he shall be forever discharged from the crime; provided, however, the attendance of the witnesses is not prevented by himself, and he has filed no pleading seeking a continuance. Bl tor:y.-1194, ch , 1989; CGL 1940 Supp. 8688(101). 2946

47 Right to speedy trial. De:flnition of continuance. When application for continuance to be made. Form of application for continuance Right to speedy trial.-in all criminal prosecutions the state and the defendant shall each have the right to a speedy trial. Hlsto~T.- 196, ch , 1939; CGL 1940 Supp. 8663(202). cf.- 11, Decl. of rights, const Definition of continuance.-(!) A continuance within the meaning of this chapter is the postponement of a cause for any period of time. (2) The court on the application of either party or on its own motion may in its discretion for good cause grant a continuance. HlatolT.- 196, ch , 1939; CGL 1940 Supp. 8663(208) When application for continuance to be made.-an applic,ation for continuance may be made only before or at the time the case is set for trial, unless good cause for failure so to apply is shown or unless the ground for application arose after the cause was set for trial. Hlstory.- 197, ch , 1989; CGL 1940 Supp. 8868(204) Form of application for continuance. -An application for continuance shall be in writing. The application shall specify the ground upon which it is based and shall be signed by the prosecuting attorney or by counsel for the defendant, as the case may be, and shall be accompanied by the certificate of the signer that it is made in good faith and shall be sworn to by the applicant. HlstolT.- 198, ch , 1939; CGL 1940 Supp. 8663(206) A p p I i c a t i o n for continuance on ground of absent witness.-an application for continuance on the ground that a witness is absent shall state: (1) The name and residence of the witness and that the witness is absent; (2) The facts expected to be proved by the witness; (3) That the testimony of the witness is material and not merely cumulative, and that the facts to be proven by the witness cannot be proven by any other available witnesses; (4) Whether the witness is a legal resident of this state; (5) Facts showing that due diligence has been used to obtain the witness, and that a service of a summons on the witness has been attempted, within a reasonable time before trial, but the witness could not be found; ( 6) Facts showing that the applicant expects to be able to procure the attendance of the witness at a specified time; (7) That the witness is not absent through the procurement, connivance, or consent, either directly or indirectly, of the applicant; (8) That the applicant believes that the CONTINUANCE Ch. 916 CHAPTER 916 CONTINUANCE Application for continuance on ground ot absent witness Depositions Hearing and action thereon Time for continuance Continuance where several defendants. cause cannot be tried with justice to the party without the evidence of such witness; (9) Facts showing when the witness left the jurisdiction of the court; whether his absence is temporary or permanent, and when he is expected to return; (10) Facts showing when and how the applicant learned that the witness would testify as alleged in the motion; (11) If the witness is not expected to return, then the filing of interrogatories to be propounded to such absent witness, and a request that a commission be issued to take the deposition of such witness, if the applicant is the defendant; (12) That the witness will be present at a designated time, not later than the next term of court, or that his deposition will be obtained (if applicant is defendant). Hlsto~T.- 199, ch , 1989; CGL 1940 Supp. 8663(:106). cf , Refusal of wltneas to give security Depositions.- (!) At any time after defendant is bound over for trial up to and including the day defendant is arraigned upon indictment or information, if he shall satisfy the court by hia oath in writing, or by the affidavits of credible persons, that the testimony of absent persona is material and necessary to his defense, and that such witnesses reside beyond the jurisdiction of the court or are so sick and infirm that with diligence their attendance can not be procured at the same or the next succeeding regular or special term at which the case may be tried, the judge upon the proper application of the accused, or his attorney, and the filing of the interrogatories to be propounded to such absent witnesses, shall order that a commission be issued to take the deposition of such witnesses to be used in the trial. (2) If a defendant desires to perpetuate the testimony of a witness living in or out of the state, whose testimony is material and necessary to his defense, the same proceedings shall be followed as set forth in subsection (1) hereof; with the exception, however, that the testimony of such witness be taken before an official court reporter, transcribed by him, and filed in the trial court. (3) The order for issuing such commission may be made by the judge, either in term time or in vacation, and application to him for that purpose may be made in vacation as well as in term time, but in such case due notice of the application shall be given to the prosecuting attorney. The commission shall be issued at a time to be fixed by the judge. ( 4) Except as otherwise provided, the rules 2947

48 Ch. 916 CONTINUANCE governing the filing of interrogatories and cross-interrogatories, the objections thereto, the issuing, execution and return of the commission, and the opening of the depositions in civil cases shall be observed in criminal cases. (5) No deposition shall be used or read in evidence when the attendance of the witnesses can be procured, and if it shall appear to the court that any person whose deposition has been taken, has absented himself by the procurement, inducement, or threats of the accused, or of any person on his behalf, such depositions shall not be read to the jury. History.- 199a., ch , 1939; CGL 1940 Supp (207) Hearing and action thereon.-the party applying for a continuance may file affidavits in support of his application, and the adverse party may, except as to the facts expected to be proved by the witness, thereupon file counter-affidavits. The court in its discretion may require additional affidavits or counter-affidavits and shall either grant or refuse the application after considering the allegations thereof and any affidavits or counteraffidavits that may be filed. Hlstory.- 200, ch , 1939; CGL 1940 Supp. 8668(208) Time for continuance.-no continuance shall be granted for a longer time than the ends of justice require. Hlstory.- 201, ch , 1939; CGL 1940 Supp. 8668(209) Continuance where several defendants.-where there are several defendants and a continuance is granted on the application of one or more, but not all defendants, the trial of the other defendants shall proceed unless the court orders otherwise. Hlstory.- 202, ch , 1939; CGL 1940 Supp. 8663(210). '?9_48

49 PROCEEDING TO DETERMINE MENTAL CONDITION OF DEFENDANT Ch. 917 CHAPTER 917 PROCEEDING TO DETERMINE MENTAL CONDITION OF DEFENDANT Examination of defendant's mental condition to determine whether he shall be tried Examination of defendant's mental condition to determine whether he shall be tried.-(1) If before or during trial the court, of its own motion, or upon motion of counsel for the defendant, has reasonable ground to believe that the defendant is insane, the court shall immediately fix a time for a hearing to determine the defendant's mental condition. The court may appoint two disinterested qualified experts to examine the defendant and to testify at the hearing as to his mental condition. Other evidence regarding the defendant's mental condition may be introduced at the hearing by either party. (2) If the court, after the hearing, decides that the defendant is sane, it shall proceed with the trial. If, however, it decides that the defendant is insane, it shall take proper steps to have the defendant committed to the proper institution. If the defendant is declared insane during the trial, and afterwards released from the institution to which he has been committed, as sane, his former uncompleted trial shall not constitute former jeopardy. If, after a defendant has been committed to an institution as insane, the proper officer of such institution is of the opinion that the defendant is sane, he shall report this fact to the court which conducted the hearing. If the officer so reports, the court shall fix a time for a hearing to determine whether the defendant is sane. This hearing shall be conducted in all respects like the original hearing to determine the defendant's sanity. If found sane, the trial shall proceed; if found insane, he shall again be recommitted as hereinabove set forth. No defendant committed by a court to an institution, by reason of the examination referred to in this paragraph, shall be released therefrom, without the consent of the court com Appointment of expert witnesses by court Fees for expert witnesses. mitting him. Hlstory.- 203, ch , 1939; CGL 1940 Supp, 8663(211) Appointment of expert witnesses by court.-when on a prosecution by indictment or information the existence of insanity on the part of the defendant at the time of the alleged commission of the offense charged becomes an issue in the cause, the court may appoint one or more disinterested qualified experts, not exceeding three, to examine the defendant. If the court does so, the clerk shall notify the prosecuting attorney and counsel for the defendant of such appointment and shall give the names and addresses of the experts so appointed. If the defendant is at large on bail, the court in its discretion may commit him to custody pending the examination by such experts. The appointment of experts by the court shall not preclude the state or defendant from calling expert witnesses to testify at the trial and in case the defendant is committed to custody by the court they shall be permitted to have free access to the defendant for purposes of examination or observation. The experts appointed by the court shall be summoned to testify at the trial and shall be examined by the court and may be examined by counsel for the state and the defendant. Hlstory.- 204, ch , 1939; CGL 1940 Supp. 8663(212). cf , Expert witnesses In felony prosecutions Fees for expert witnesses.-when expert witnesses are appointed by the court they shall be allowed such fees as the court in its discretion deems reasonable, having regard to the services performed by the witnesses. The fees so allowed shall be paid by the county where the indictment was found or the information filed. Such fees shall be taxed as costs in the case. Hlstoq.- 205, ch , 1939; CGL 1940 Supp, 8668(218). 2949

50 Ch. 918 CONDUCT OF TRIAL Defendant at large on bail appearing for trial may be committed to custody Trial where joint defendants Procedure where offense committed outside state Procedure where offense committed in another county Defendant at large on bail appearing for trial may be committed to custody. The court in its discretion, any time after a defendant who is at large on bail appears for trial, may commit him to the custody of the proper official to abide the judgment, sentence and any further order of the court. Hlstor;y.- 206, ch , 1939; CGL 1940 Supp. 8663(214) Trial where joint defendants.-when two or more defendants are jointly charged with an offense, whether felony or misdemeanor, they shall be tried jointly, unless the court in its discretion on the motion of the prosecuting attorney or any defendant, orders separate trials. In ordering separate trials, the court may order that one or more defendants be each separately tried and the others jointly tried or may order that several defendants be jointly tried in one trial and the others jointly tried in another trial or trials, or may order that each defendant be separately tried. Hlstor;y.- 207, ch , 1939; CGL 1940 Supp. 8663(216) Procedure where offense committed outside state.-if the jury is discharged on the ground that the court is without jurisdiction because it appears that the offense charged was committed outside this state, the court may order the defendant to be discharged or may direct that a communication be sent by the clerk of the court to the chief executive officer of the state, territory or district where the offense was committed an'd may commit the defendant to custody or admit him to bail, for such time as it deems reasonable, to await a requisition for his extradition to such state, territory or district. If no requisition is made within the time set by the court the defendant shall be discharged, and if he has been admitted to bail, the court shall order that the surety or the defendant as the case may be, be exonerated from liability on his undertaking, or if money or bonds have been deposited as bail, that such money or bonds be returned. Hlstor;y.- 208, ch , 1939; CGL 1940 Supp. 8668(%16). cf.-ch. 941, Extradition Procedure where offense committed in another county.-if the jury is discharged on the trround that the court is without jurisdiction of the offense charged because it appears that it was committed in another county of this state and that the court is not empowered by the criminal procedure law to try such offense, the court shall commit the defendant to custody or admit him to bail, for such time as it deems reasonable, to await a warrant for his arrest from the proper county. The clerk CHAPTER 918 CONDUCT OF 'l'rial View by jury Separation and detention of jurors; admonition by court Admonition to officer in charge of jw ors Directing acquittal of defendant Accused may make himself a witness Charge to jury; request for instructions. of the court shall forthwith give notice to the prosecuting attorney of the proper county that the defendant has been so committed to custody or admitted to bail. If the defendant is not arrested on a warrant from the proper county within the time set by the court, he shall be discharged, and if he has been admitted to bail, the court shall order that the surety or the defendant, as the case may be, be exonerated from liability on his undertaking, or if money or bonds have been deposited as bail, that such money or bonds be returned. Hlstor;y.- 209, ch , 1939; CGL 1940 Supp. 8663(217) View by jury.-when, in the opinion of the court, it is proper that the jury should view the place where the offense appears to have been committed, or, where any other material fact appears to have occurred, it may order the jury, in the custody of the proper officer, to be conducted in a body to such place; and the officer shall be admonished to permit no person to speak to or otherwise communicate with the jury, nor to do so himself, on any subject connected with the trial, and to return them into the courtroom without unnecessary delay, or at a specified time. The trial judge and defendant shall be present, unless defendant absents himself without permission of court, and the prosecuting attorney and counsel for the defendant may be present at the view by the jury. Hlstory.- 210, ch , 1939; CGL 1940 Supp. 86tl3C218), cf , Presence of defendant when prosecution for felony Separation and detention of jurors; admonition by court.-the court in its discretion may direct that the jurors, when they leave the jury box at any time before the cause is finally submitted to them, be permitted to separate or be kept together in charge of a 2950 proper officer. In either event the court shall admonish them that it is their duty not to converse among themselves, or with any one else, on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them. If the court permits the jurors to separate it shall also admonish the jurors not to view the place where the offense appears to have been committed. Hlstor;y.- 211, ch , 1939; CGL 1940 Supp. 8663(%19) Admonition to officer in charge of jurors.-if the jurors are committed to the charge of an officer he shall be admonished by the court to keep the jurors together in the place specified by the court and not to permit