demeanor his presence at the trial may be waived.22 The defendant should not be unnecessarily manacled or restrained at the trial, or if so, he will be entitled to a new trial for this cause.23 § 963. Change of venue.-As a rule the accused must be tried in the county in which the offense is alleged to have taken place. At common law, and by statute in most states, if the accused can show by sufficient proof supported by affidavits that he can not have a fair and impartial trial in the county of the offense, he is entitled to a change of venue; that is, to have his trial in an adjoining county.24 The state may usually file counter affidavits,25 but it is held sometimes that this may not be done where the ground of change is prejudice of the judge.26 It is usually held that where the motion is made on this ground the change should be granted as a matter of course.27 One only of several defendants may be granted a change of venue.2 28 § 964. Publicity of trial.-The Constitution of the United States and the state constitutions grant to persons accused of crime the right to a public trial. Such a provision is for the benefit of the accused, in order to insure to him a fair trial. It is not necessary, however, that more than a reason 22 Bloomington v. Heiland, 67 Ill. 278; State v. Dry, 152 N. Car. 813, 67 S. E. 1000. 23 Faire v. State, 58 Ala. 74; People v. Harrington, 42 Cal. 165, 10 Am. Rep. 296; State v. Kring, 1 Mo. App. 438. 24 State v. Albee, 61 N. H. 423, 60 Am. Rep. 325; State v. Sullivan, 39 S. Car. 400, 17 S. E. 865. 25 Pierson v. State, 21 Tex. App. 14, 17 S. W. 468; Perrin v. State, 81 Wis. 135, 50 N. W. 516. 26 Cantwell v. People, 138 Ill. 602, 28 N. E. 964. 27 Cantwell v. People, 138 I11. 602, 28 N. E. 964; Manley v. State, 52 Ind. 215. 28 State v. Martin, 2 Ired. L. (N. Car.) 101. able proportion of the public be allowed to attend; and those who attend merely from idle curiosity may under certain circumstances be excluded.29 § 965. Counsel for defendant.-The defendant is entitled. to be represented at the trial by counsel and in most states the court must assign counsel to a defendant who is unable to employ counsel.30 The old rule under the common law was that one indicted for treason or felony was not entitled to be represented by counsel at the trial, but might have their advice, or have them to argue a question of law.31 A defendant is not required to accept the services of the counsel assigned; and if he refuses to accept them, the trial may proceed without his representation by counsel.32 § 966. Counsel for the prosecution.-In this country criminal prosecutions before courts of a higher degree than a justice of the peace court, are carried on by a public prosecuting officer, a professional lawyer, elected by the people or appointed by executive authority. The duties of this attorney are usually to draw indictments, present cases to the grand jury, and prepare them for trial and try them before the petit jury. It many times is within his discretion to determine whether a prosecution should be instituted, as in case of technical violations of the law. Private persons may employ counsel to aid in the prosecution,33 or the court may appoint attorneys to assist in the prosecution or act in the case of the illness of the regular attorney, or his inability 29 People v. Murray, 89 Mich. 276, 50 N. W. 995, 14 L. R. A. 809, 28 Am. St. 294; Cooley Const. Lim. (6th ed.) 379. 30 Hendryx v. State, 130 Ind. 265, 29 N. E. 1131. 311 Chitty Crim. L. 407; 2 Hawk. P. C. ch. 39, §§ 1, 4. 32 State v. Moore, 121 Mo. 514, 26 S. W. 345, 42 Am. St. 542; Reg. v. Yscuado, 6 Cox Cr. C. 386. 33 People v. Powell, 87 Cal. 348, 25 Pac. 481, 11 L. R. A. 75; Keyes v. State, 122 Ind. 527, 23 N. E. 1097. to conduct the case.34 The prosecuting attorney represents the public interests, which, while they require the conviction of the guilty, are opposed to the conviction of the innocent, and should compel the use of none but fair methods in the trial.35 He should not tamper with witnesses, 36 declare his personal belief of the guilt of the accused,37 state anything as a fact not in evidence,38 or use any tricks or deceptions at the trial.39 41 § 967. Defendant's right to copy of indictment-Names of jurors or witnesses and bill of particulars.-The defendant is entitled under statutes in most of our states, to be furnished with a copy of the indictment before trial.40 In many states he is entitled to a list of witnesses who are to appear against him and the names of those who have been summoned to act as jurors.42 In cases where the offense is such that from the indictment the defendant can not ascertain the exact nature of the crime charged, as where there is a general charge of being a common scold, common prostitute or common seller of intoxicating liquors, the court, upon the accused's request, may require the prosecuting attorney to furnish the accused a bill of particulars;43 and also where there is a general charge of adultery or embezzlement." 34 Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370; State v. Johnson, 12 Tex. 231. 35 Engle v. Chipman, 51 Mich. 524, 16 N. W. 886. 36 Gandy v. State, 24 Nebr. 716, 40 N. W. 302. 37 State v. Phillips, 233 Mo. 299, 135 S. W. 4. 38 Cheatham v. State, 67 Miss. 335, 7 So. 204, 19 Am. St. 310; State v. Kent, 5 N. Dak. 516, 67 N. W. 1052, 35 L. R. A. 518. 39 People v. McCann, 247 Ill. 130, 93 N. E. 100, 20 Ann. Cas. 496; People v. Dane, 59 Mich. 550, 26 40 Robertson v. State, 43 Ala. 325; Woodall v. State, 25 Tex. App. 617, 8 S. W. 802. 41 Logan v. United States, 144 U. S. 263, 36 L. ed. 429; Scott v. People, 63 Ill. 508. 42 Bain v. State, 70 Ala. 4. 43 Commonwealth v. Davis, 11 Pick. (Mass.) 432; Williams v. Commonwealth, 91 Pa. St. 493. 44 People v. Davis, 52 Mich. 569, 18 N. W. 362. § 968. Presence and conduct of judge at trial.—The judge must be present during the whole trial and his absence at any essential part of the proceedings is fatal.45 If there should be misconduct of the judge prejudicial to the defendant, a conviction should be set aside. If § 969. Joint defendants tried separately.—Where several defendants are jointly indicted it rests in the court's discretion to determine whether under all the circumstances, they should be tried separately.46 If a joint trial would prejudice either defendant, separate trials should be ordered.47 there are separate indictments against one defendant charging offenses which might have been joined in different counts of the same indictment, the court may order a trial for both offenses at the same time;48 but separate trials must be had if the offenses are not such as might have been joined in a single count.49 § 970. Right to jury trial.—Any person charged with a criminal offense is entitled to a jury trial. This right was given by the English common law, and is one of the guarantees of the Magna Charta of 1215. This right is secured to the people of this country by both the federal and the state constitutions. However, if a statute so provides, city ordinances may be enforced without jury trials,50 contempt of court may be punishable without a jury,51 and whatever may have been 45 Thompson v. People, 144 I11. 378, 32 N. E. 968; Palin v. State, 38 Nebr. 862, 57 N. W. 743. 46 Doyle v. People, 147 Ill. 394, 35 N. E. 372; Commonwealth v. Bingham, 158 Mass. 169, 33 N. E. 341. 47 Commonwealth v. James, 99 Mass. 438. 48 Cummins v. People, 4 Colo. App. 71, 34 Pac. 734; State v. Lee, 114 N. Car. 844, 19 S. E. 375. 49 State v. Devlin, 25 Mo. 174. 50 In re Kinsel, 64 Kans. 1, 67 Pac. 634, 56 L. R. A. 475. 51 People v. Tool, 35 Colo. 225, 86 Pac. 224, 6 L. R. A. (N. S.) 822, 117 Am. St. 198; People v. Kipley, 171 Ill. 44, 49 N. E. 229, 41 L. R. A. 775. under former usage tried without a jury;52 but, one's life, liberty or property can not be taken without a jury trial.53 A statute is constitutional which provides for trial of a criminal offense without a jury, if it allows an unrestricted right of appeal and trial by jury before the appellate tribunal.54 The authorities do not agree as to whether the right to a jury trial may be waived by the defendant. Some hold that he may not do so in cases of felony;55 others that a jury may be waived in all cases, where there is a statute permitting the case to be tried by the court without a jury.56 But the right to a jury trial may not be waived by mere consent, and there must be statutory authority permitting it;57 and where constitution or statute expressly requires a jury trial it can not be waived.58 Where a statute permits the waiver of a jury trial, the defendant may consent to a trial by more or less than twelve men;59 but otherwise the constitutional guarantee of a jury trial prevents the waiver of a trial by twelve men.60 § 971. Right of challenge.-The accused is entitled to be tried by an impartial jury, of men who have been summoned, chosen and impaneled according to the method laid down by law, and who are individually qualified to serve. Therefore 52 State v. Churchill, 48 Ark. 426, 3 S. W. 352. 53 Atchison, &c. R. Co. v. Baty, 6 Nebr. 37, 29 Am. Rep. 356. 54 Beers v. Beers, 4 Conn. 535, 10 Am. Dec. 186; Flint R. Steamboat v. Foster, 5 Ga. 194, 48 Am. Dec. 248. 55 Williams v. State, 12 Ohio St. 622. 56 United States v. Rathbone, Fed. Cas. No. 16121, 2 Paine (U. S.) 578; Commonwealth v. Whitney, 108 Mass. 5; Dillingham v. State, 5 Ohio St. 280. 57 State v. Maine, 27 Conn. 281; Neales v. State, 10 Mo. 498. 58 Arnold v. State, 38 Nebr. 752, 57 N. W. 378. 59 Commonwealth v. Dailey, 12 Cush. (Mass.) 80. 60 Cancemi v. People, 18 N. Y. 128, 7 Abb. Prac. 271; Oborn v. State, 143 Wis. 249, 31 L. R. A. (N. S.) 966, 126 N. W. 737; 1 Chitty Crim. L. 505; 2 Hale P. C. |