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be a lien on the real estate of the defendant in the same manner as judgments in civil actions, and executions thereon shall only be stayed, upon an appeal taken, by security being given in like manner as is required in civil cases. Should the judgment be affirmed, upon appeal to the supreme court, the clerk of the superior court, on receipt of the certificate from the supreme court, shall issue execution on such judgment.

1887, c. 191, s. 3.

3283. Upon receipt of certificate of opinion of supreme court, what to be done. The clerk of the superior court, in all cases where the judgment has been affirmed (except where the conviction is a capital felony), shall forthwith on receipt of the certificate of the opinion of the supreme court notify the sheriff, who shall proceed to execute the sentence which was appealed from. In criminal cases where the judgment is not affirmed the cases shall be placed upon the docket for trial at the first ensuing term of the court after the receipt of such certificate.

1887, c. 192, s. 3.

XVII. EXECUTION.

3284. Governor to issue warrant for execution of death penalty. In all cases of affirmance of a sentence for a capital felony the clerk of the supreme court, at the same time that the decision of the supreme court is certified down to the superior court, shall send a duplicate thereof to the governor, who shall immediately issue his warrant under the great seal of the state to the sheriff of the county in which the appellant was sentenced, directing him to execute the death penalty on a day specified in said warrant, not less than thirty days from the date of said warrant; but this shall not deprive the governor of the power to pardon or reprieve the defend

ant or to commute the sentence.

1887, c. 192, s. 3.

3285. Capital executions private. As the ends of justice, public morals and the preservation of order demand that the execution of all capital offenders should be made private and invested with the solemnity appropriate to the final act of penal law, any sheriff on whom shall devolve the execution of a sentence of death on a public offender shall be required to provide for the execution of such criminal within the jailyard inclosure, and as much removed from public view as the means within his control will allow.

Code, s. 1243; 1901, c. 215; 1868-9, c. 21, ss. 1, 2; 1879, c. 221.

3286. Witnesses and necessary assistants to be present at execution. The sheriff, after having provided for the private execu

tion of the criminal, may admit by ticket, in addition to the required guard, two physicians and necessary assistants, not more than thirtysix nor less than eighteen respectable citizens, to witness for the state the due observance of the law. The board of commissioners of Cumberland county shall have the power, in their discretion, to prescribe the place within said county for the execution of criminals in capital cases: Provided, that no such execution shall be public. Code, s. 1244; 1868-9, c. 21, s. 3; 1905, c. 450.

NOTE. For incendiary fires, procedure for investigating, see Insurance.
For procedure in mayor's court, see Towns and Cities.

For outlawing by justices, see s. 3183.

When defendant imprisoned for nonpayment of fine and costs, see Costs, s. 1292.

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3287. Accessories to felonies before the fact; when, where, and how tried and punished. If any person shall counsel, procure or command any other person to commit any felony, whether the same be a felony at common law or by virtue of any statute, the person

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so counseling, procuring, or commanding, shall be guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon; or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished; and the offense of the person so counseling, procuring, or commanding, howsoever indicted, may be inquired of, tried, determined and punished by any court which shall have jurisdiction to try the principal felon, in the same manner as if such offense had been committed at the same place as the principal felony or where the principal felony is triable, although such offense may have been committed at any place within or without the limits of the state; and in case the principal felony shall have been committed within the body of any county, and the offense of counseling, procuring or commanding shall have been committed within the body of any other county, the last-mentioned offense may be inquired of, tried, determined, and punished in either of such counties: Provided, that no person who shall be once duly tried for any such offense, whether as an accessory before the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offense.

Code, s. 977; R. C., c. 34, s. 53; 1797, c. 485, s. 1; 1852, c. 58.

3288. Accessories punished, principal not tried. In order that accessories may be convicted and punished in all cases, if any principal offender shall be in anywise convicted, it shall be lawful to proceed against an accessory, either before or after the fact, in the same manner as if the principal felon shall die or be pardoned or otherwise delivered before or after sentence or punishment, and every such accessory shall suffer the same punishment, if he be in anywise convicted, as he should have suffered if the principal had been sentenced or punished.

Code, s. 979; R. C., c. 34, s. 55.

3289. Accessories to felonies after the fact; when, where, and how tried and punished. If any person shall become an accessory after the fact to any felony, whether the same be a felony at common law or by virtue of any statute made, or to be made, such person shall be guilty of a felony, and may be indicted and convicted together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted for such felony, whether the principal felon shall or shall not have been previously

convicted, or shall or shall not be amenable to justice, and shall be punished by imprisonment in the state's prison or county jail for not less than four months nor more than ten years; and may also be fined in the discretion of the court. And the offense of such person may be inquired of, tried, determined and punished by any court which shall have jurisdiction of the principal felon, in the same manner as if the act, by reason whereof such person shall have become an accessory, had been committed at the same place as the principal felony, although such act may have been committed without the limits of the state; and in case the principal felony shall have been committed within the body of any county, and the act by reason whereof any person shall have become accessory shall have been committed within the body of any other county, the offense of such person guilty of a felony as aforesaid may be inquired of, tried, determined, and punished in either of said counties: Provided, that no person, who shall be once duly tried for such felony, shall be again indicted or tried for the same offense.

Code, s. 978; R. C., c. 34 s. 54; 1797, c. 485, s. 1; 1852, c. 58.

3290. Accessories before the fact, how punished. Any person who shall be convicted as an accessory before the fact in either of the crimes of murder, arson, burglary or rape, shall be imprisoned for life in the state's prison. An accessory before the fact to the stealing of any horse, mare, gelding or mule, on being duly convicted thereof, shall be imprisoned in the state's prison for not less than five nor more than twenty years, in the discretion of the court. Every accessory before the fact, in any other felony, shall be punished by imprisonment in the state's prison or county jail for not more than ten years, or may be fined, in the discretion of the court. Code, s. 980; 1868-9, c. 31, s. 2; 1874-5, c. 212.

3291. Felonies and misdemeanors defined. A felony is a crime which is or may be punishable by either death or imprisonment in the state's prison. Any other crime is a misdemeanor.

1891, c. 205, s. 1.

3292. Felonies, punishment of. Every person who shall be convicted of any felony for which no specific punishment is prescribed by statute, shall be imprisoned in the county jail or state's prison not exceeding two years, or be fined, in the discretion of the court, or if the offense be infamous, the person offending shall be imprisoned in the county jail or state's prison not less than four months nor more than ten years, or be fined.

Code, s. 1096; R. C., c. 34, s. 27.

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