prove or disprove the challenge, and shall be compelled to answer every question pertinent to the inquiry therein.

SEC. 347. Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues shall govern the admission or exclusion of testimony, on the trial of the challenge.

SEC. 348. On the trial of a challenge for implied bias, the court shall determine the law and the facts, and shall either allow or disallow, the challenge and direct an entry accordingly on the minutes.

SEC. 349. On the trial of a challenge for actual bias, when the evidence is concluded, the court shall instruct the triers that it is their duty to find the challenge true, if, in their opinion, the evidence warrants the conclusion that the juror has such a bias against the party challenging him as to render him not impartial, and that it, from the evidence, they believe him free from such a bias, they must find the challenge not true. The court shall give them no other instructions.

SEC. 350. The triers must thereupon find the challenge either true or not true, and their decision is final. If they find it true, the juror shall be excluded.

SEC. 351. All challenges to an individual juror, except peremptory, must be first taken by the defendant and then by the people, and each party must exhaust all his challenges to each juror as he is called, before the other begins.

SEC. 352. The challenges of either party need not all be taken at once, but they must be taken separately in the following order, including in each challenge all the causes of challenge belonging to the same class: First. To the panel. Second. To an individual juror for a general disqualification. Third. To an individual juror for implied bias. Fourth. To an individual juror for actual bias.

SEC. 353. If all the challenges on both sides be disallowed, either party may still take a peremptory challenge, unless the peremptory challenges be exhausted.

VI.-TRIAL.

SEC. 354. Trial, order of.

355. When prescribed may be departed from.
356. Counsel, number of, innocence presumed.
358. Reasonable doubt of guilt, degrees of.
359. When defendant may be tried separately.

360. When defendant may turn states evidence.

361. When defendant may be witness for co-defendant.

362. Discharge deemed acquittal, rape proof of.

364. Accomplice, evidence of to be corroborated.

365. Proceedings where facts show offence greater than charge.

367. When jury may be discharged, when defendant discharged.

369. Proceedings when exclusive jurisdiction of offence in other county.
370. Clerk to transmit papers, when defendant discharged.

372. Proceedings on arrest in such cases.

373. Proceedings when facts do not constitute offence.

374. Proceedings when case submitted anew.

375. Acquittal, when court may advise, effect of.

376. When view may be had, no person allowed to speak to jury.

378. Juror must disclose knowledge of controversy in court, must be witness.

379. Jury, how to be kept, to be admonished on each adjournment.

381. Juror sick, court to decide questions of law.

383. Law and fact on trial of indictment.

384. Jury to receive law as laid down by court, charge to jury.

388. How jury to decide after charge.

389. Defendant on bail may be committed, room to be provided.
391. Provision for jury while deliberating.

392. Papers which they may take.

394. Jury may be brought into court for instruction.

395. When jury may be discharged after returning.

397. Effect of discharge without verdict.

398. Adjournment during absence of jury, final adjournment, discharges.

400. Expenses of two or more counties for judicial purposes.

401. Verdict, how delivered, defendant. when must appear.

403. Jury to be asked if they agreed, general or special verdict.

405. General import, special, reduced to writing, form of.

409. Judgment on, how given, new trial when ordered.

411. Defendant may be found guilty of any offence.

412. Verdict may be rendered as to some defendants.

413. Verdict, when to be reconsidered.

415. Persistance of jury in informality to work acquitted.

416. Jury may be polled, recording.

418. Proceedings on verdict of acquittal.

419. Of guilty proceedings.

SEC. 354. The jury having been empaneled and sworn, the trial shall proceed in the following order: First. If the indictment be for felony, the clerk must read the indictment and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with. Second. The district attorney or other counsel for the people must open the cause and offer the evidence in support of the indictment. Third. The defendant or his counsel may then open the defense, and offer the evidence in support thereof. Fourth. The parties may then respectively offer rebutting testimony only,

unless the court, for good reasons, in furtherance of justice, permit them to offer evidence upon their original cause. Fifth. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the counsel for the people must open and must conclude the argument. Sixth. The judge shall then charge the jury, if requested by either party; he may state the testimony and declare the law, but shall not charge the jury in respect to matters of fact. Such charge shall be reduced to writing before it is given, and in no case shall any charge or instructions be given to the jury, otherwise than in writing, unless by the mutual consent of the parties.

SEC. 355. When the state of the pleadings require it, or in any other case, for good reasons and in the sound discretion of the court, the order prescribed in the last section may be departed from.

SEC. 356. If the indictment be for an offence punishable with death, two counsel on each side may argue the cause to the jury-in which case they must do so alternately. If it be for any other offence, the court may, in its discretion, restrict the argument to one counsel on each side.

SEC. 357. A defendant in a criminal action is presumed to be innocent until the contrary be proved; and in case of a reasonable doubt whether his guilt be satisfactorily shown, he is entitled to be acquitted.

SEC. 358. When it legally appears that a defendant has committed a public offence, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only.

SEC. 359. When two or more defendants are jointly indicted for any offence, they shall be jointly tried-unless, for good cause shown by the prosecution or defence, the court shall otherwise direct.

SEC. 360. When two or more persons are included in the same indictment, the court may at any time before the defendant has gone into his defense, on the application of the district attorney, direct any defendant to be discharged from the indictment, that he may be a witness for the people.

SEC. 361. When two or more persons are included in the same indictment, and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it shall order him to be discharged from the indictment, before the evidence shall be deemed closed, that he may be a witness for his co-defendant.

SEC. 362. The order mentioned in the two last sections

shall be deemed an acquittal of the defendant discharged, and shall be a bar to another prosecution for the same offence.

SEC. 363. Proof of actual penetration into the body is sufficient to sustain an indictment for rape, or for the crime against

nature.

SEC. 364. A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offence; and the corroboration shall not be sufficient if it merely show the commission of the offence or the circumstances thereof.

SEC. 365. If it appear by the testimony that the facts proved constitute an offence of a higher nature than that charged in the indictment, the court may direct the jury to be discharged, and all proceeding on the indictment to be suspended, and may order the defendant to be committed or continued on, or admitted to bail, to answer any new indictment which may be found against him for the higher offence.

SEC. 366. If an indictment for the higher offence be dismissed by the grand jury, or be not found at or before the next term, the court shall again proceed to try the defendant on the original indictment.

SEC. 367. The court may also direct the jury to be discharged when it appears that it has not jurisdiction of the offence, or that the facts charged in the indictment do not constitute an offence punishable by law.

SEC. 368. If the jury be discharged because the court has not jurisdiction of the offence charged in the indictment, and it appears that it was committed out of the jurisdiction of this territory, it shall order the defendant to be discharged.

SEC. 369. If the offence were committed within the exclusive jurisdiction of another county of this territory, the court shall direct the defendant to be committed for such time as shall be deemed reasonable, to await a warrant from the proper county for his arrest; or if the offence be a misdemeanor only, it may admit him to bail in a recognizance, with sufficient sureties, that he will, within such time as 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 certain time particularly designated in the recognizance, 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 recognizance.

SEC. 370. In the case provided for in the last section, the clerk shall forthwith transmit a certified copy of the indict

ment, and of all the papers filed in the action, to the district attorney of the proper county, the expense of which transmission shall be chargeable to that county.

SEC. 371. If the defendant be not arrested, as provided in section three hundred and sixty-nine, on a warrant from the proper county, he shall be discharged from custody, or his bail in the action shall be exonerated, or money deposited instead of bail shall be refunded, as the case may be, and the sureties in the recognizance shall be discharged.

SEC. 372. If he be arrested, the same proceeding shall be had thereupon as upon the arrest of a defendant in another county, on a warrant of arrest issued by a magistrate.

SEC. 373. If the jury be discharged because the facts as charged do not constitute an offence punishable by law, the court shall order that the defendant, if in custody, be discharged; or if admitted to bail, that his bail be exonorated, or if he have deposited money instead of bail, that the money deposited be refunded to him, unless in the opinion of the court a new indictment can be framed, upon which the defendant can be legally convicted, in which case it may direct that the case be submitted to the same or another grand jury.

SEC. 374. If the court direct that the case be submitted anew, the same proceedings must be had thereon as are prescribed in sections two hundred and eighty and two hundred and eighty-one, both inclusive.

SEC. 375. If, at any time after the evidence on either side is closed, the court deem the same insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury shall not be bound by such advice, nor shall the court for any cause prevent the jury from giving a verdict, except as provided in sections three hundred and sixty, three hundred and sixty-one, three hundred and sixty-five, and three hundred and sixty-seven.

SEC. 376. Whenever, in the opinion of the court, it is proper that the jury should view the place in which the offence is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of the sheriff, to the place, which shall be shown to them by a person appointed by the court for that purpose.

SEC. 377. No person shall be suffered to speak to the jury on any subject connected with the trial, and the officer shall return them into court without unnecessary delay, or at a specified time.

SEC. 378. If a juror have any personal knowledge respecting a fact in controversy in the case, he must declare the same