Page:1887 Compiled Laws of Dakota Territory.pdf/1209

 found indictment is not sustained by the fact of the discharge of the jury on the first indictment.

§ 7389. If a new indictment is not found for the higher of­fense within a year as aforesaid, the court must again proceed to try the defendant on the original indictment.

§ 7390. The court may direct the jury to be discharged, where it appears that it ha not jurisdiction of the offense, or that the facts as charged in the indictment do not constitute an offense punishable by law.

§ 7391. If the jury is discharged because the court has not jurisdiction of the offense charged m the indictment, and it appears that it was committed out of the jurisdiction of this terri­tory, the court may order the defendant to be di charged, or to be detained for a reasonable time specified in the order, until a communication can be sent by the district attorney to the chief executive officer of the state, territory, or district where the offense was committed.

§ 7392. If the offense was committed within the exclusive jurisdiction of another county of this territory, the court must direct the defendant to be committed for such time a it deems reasonable to await a warrant from the proper county for his arrest, or if the offense be a misdemeanor only, it may admit him to bail in an undertaking, with sufficient sureties, that he will, within such time a the court may appoint, render himself amenable to a warrant for his arrest from the proper county, and if not sooner arrested thereon, will attend at the office of the sheriff of the county where the trial was had, at a time particularly specified in the undertaking, to surrender himself upon the warrant, if issued, or that his bail will forfeit such sum as the court may fix, and to be mentioned in the undertaking, and the clerk must forthwith transmit a certified copy of the indictment, and all the papers in the action filed with him, to the district attorney of the proper county, the expense of which transmission is chargeable to that county.

§ 7393. If the defendant is not arrested on a warrant from the proper county, he must be discharged from custody, or his bail in the action be exonerated, or money deposited instead of bail refunded, as the case may be, and the sureties in the undertaking, as mentioned in the la t section, must be discharged.

§ 7394. If he is arrested, the same proceeding must be had thereon a upon the arrest of a defendant in another county, on a warrant of arrest issued by a magistrate.

§ 7395. If the jury be discharged because the facts as charged do not constitute an offense punishable by law, the court must order that the defendant, if in custody, be discharged therefrom, or if admitted to bail that his bail be exonerated, or if he have deposited money instead of bail, that the money de­posited be refunded to him, unless in its opinion a new indict­ment can be framed, upon which the defendant can be legally convicted, in which ca e it may direct that the case be resub­mitted to the same or another grand jury.

§ 7396. If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.

§ 7397. When, in the opinion of the court. it is proper that the jury should view the place in which the offense was charged