5. Peremptory.

3 R. S., 707, § 190.

§ 387. Jury to be sworn, etc.-The first twelve persons who appear, as their names are drawn and called, who are approved as indifferent between the parties, and are not discharged or excused, must be sworn; and constitute the jury to try the issue.

II. Conduct of the jury, after the cause is submitted to them.
III. The verdict.

CHAPTER I.

THE TRIAL.

SECTION 388. In what order trial to proceed.

389. Defendant presumed innocent, until contrary proved; in case of reasonable doubt, entitled to acquittal.

390. When reasonable doubt of which degree he is guilty, he must be convicted of the lowest.

391. Separate trial of defendants jointly indicted.

392. Rules of evidence in civil cases applicable to criminal cases, except where otherwise provided in this Code.

393. Defendant as witness.

394. Compensation of witness.

395. Confession of defendant, when evidence, and its effect.

396, 397. Evidence on trial for treason.

398. Evidence on trial for conspiracy.

399. Conviction cannot be had on testimony of accomplice, unless corroborated.

400. If testimony show higher crime than that charged, court may discharge jury, and hold defendant to answer a new indict

ment.

401. If new indictment not found, defendant to be tried on the original indictment.

402. Court may discharge jury, where it has not jurisdiction of the offense, or the facts do not constitute an offense.

403. Proceedings, if jury discharged for want of jurisdiction of the offense, when committed out of the state.

404-407. Proceedings in such case, when offense committed in the state. 408, 409. Proceedings, if jury discharged because the facts do not constitute an offense.

410. When evidence on either side is closed, court may advise acquittal; effect of the advice.

411. View of premises, when ordered, and how conducted.

412. Duty of officer as to jury.

413. Knowledge of juror, to be declared in court, and juror to be sworn as witness.

414. Jurors may be permitted to separate during the trial; if kept together, oath of the officers.

415. Jurors not to converse together on the subject of the trial, nor form an opinion until the cause is submitted.

416. Proceedings, where juror becomes unable to perform his duty before conclusion of trial.

417. Court to decide questions of law arising during trial.

418. On indictment for libel, jury to determine law and fact.

419. In all other cases, court to decide questions of law, subject to right of defendant to except.

420. Charge to jury.

SECTION. 421. Jury may decide in court, or retire in the custody of officers; oath of the officers.

422. When defendant on bail appears for trial, he may be committed. § 388. In what order trial to proceed. The jury having been impanelled and sworn, the trial must proceed in the following order: 1 The district attorney, or other counsel for the people, must open the case, and offer the evidence in support of the indictment;

2. The defendant or his counsel may then open his defense and offer his evidence in support thereof;

3. The parties may then, respectively, offer rebutting testimony, but the court, for good reason, in furtherance of justice, may permit them to offer evidence upon their original case;

4. When the evidence is concluded, unless the case is sub-. mitted to the jury on either side, or on both sides, without argument the defendant or his counsel must commence, and the counsel for the people conclude the argument to the jury.

5. The court must then charge the jury.

(a) Summing up of counsel.--Court has the power to limit counsel in their summing up, and unless this discretion is abused, it is not a subject sf review in a higher tribunal. People v. Kelly, 94 N. Y., 526.

(b) What act not an abuse of discretion.-When defendant's counsel was limited to thirty, and the district attorney to twenty-five, and the former was stopped by the court at the expiration of his time, while the latter continues five minutes over his time, when he was stopped, held, this was not an abuse of discretion. (Ib.)

(c) Charge to jury. Statement of the law as to criminal responsibility defined. People v. Moett, 23 Hun, 60.

(d) Must state facts to be proved only.--Counsel will not be allowed to state facts in his opening which cannot be given in evidence to the jury. (People v. Hetteck, 1 Wh. C. Cas., 399.) (People v. Tyrrell, 3 N. Y. Cr. R. 142.)

(e) The court must control.-In criminal cases the jury are bound by the instructions of the court as to the law, to the same extent as in civil cases. (Duffy v. People, 26 N. Y., 588; 5 Park., 321.)

§ 389. Defendant presumed innocent, until contrary proved; in case of reasonable doubt, entitled to acquittal.-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 is satisfactorily shown, he is entitled to an acquittal.

(a) What is reasonable doubt.-A reasonable doubt differs from an imaginary unsubstantial doubt. It is such a doubt as honest, conscientious, pains taking men may entertain upon a state of facts presented to them. People v. Stott, 4 N. Y., Cr. R. 316.

(b) Court need not sub-divide reasonable doubt.—The trial court is not required in charging the jury to sub-divide the point of reasonable doubt by limiting it to any particular branch of the case. People v. Reary, 4 N. Y., Cr. R. 1 N. Y., State Rep. 438 (People v. Cruger, 4 N. Y. Cr. R. 68.)

When a judge properly submits to the jury a proposition covering the whole issue, and instructs them that they must find it beyond a reasonable doubt, he cannot be required to sub-divide it, and charge separately as to each of the elements necessary to constitute the crime, that it must be established beyond a reasonable doubt. (Walker v. People, SS N. Y., 81.)

A reasonable doubt: is not a mere guess or surmise that a man may not be guilty; it is such a doubt as a reasonable man may entertain after a fair review and consideration of the evidence. A doubt for which some good reason arising

from the evidence can be given. People v. Guidici, 100 N. Y. 503; 3 N. Y. Crim. R. 551; People v. Willett, 36 Hun, 500.

$390. When reasonable doubt of which degree he is guilty, he must be convicted of the lowest.-When it appears that a defendant has committed a crime, 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 those degrees only.

§ 391. Separate trial of defendants jointly indicted. When two or more defendants are jointly indicted for a felony, any defendant requiring it, must be tried separately. In other cases, defendants, jointly indicted, may be tried separately or jointly, in the discretion of the court.

(a) Order of trial.-The district attorney will determine the order of separate trials. (Patterson v. People, 46 Barb., 625.)

(b) May be convicted of different degrees.-Persons jointly indicted for an offense arising out of the same transaction, may be connected of different degrees of the same crime (Klein v. People, 31 N. Y., 229. People, v. White 5 5 Barb., 606.)

§ 392. Rules of evidence in civil cases applicable in criminal cases, except where otherwise provided in this Code.—The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code.

3 R. S., 1029, § 19;

(a) The rules of evidence.-The rules of evidence are the same in civil and criminal case except as otherwise provided for by Cr. Code. People v. Brown. 2 N. Y., Cr. R. 427.

§ 393. Defendant as witness.-The defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not createany presumption against him.

(a) Under same rules of evidence.-Where, upon a criminal trial, the prisoner offers himself as a witness, he is subject to the same rules, upon crossexamination, as other witnesses. (People v. Casey, 72 N. Y., 394.) People v. Druse, 5 N. Y., Cr. R..11.

The privilege of a defendant in a criminal case to testify in his own behalf, to one that cannot be forced upon him. People v. Singer, 5 N. Y., Cr. R. 1.

(b) Specific discrediting acts.-Where the defendant testifies in his own behalf he may be asked on cross examination concerning specific acts of misconduct on his part to discredit his evidence. People v. Reavy, 4 N. Y., Cr. R. 251 N. Y., State Rep. 438. People v. Irving, 2 N, Y., Cr. R. 171. 95 N. Y., 541. People v. Casey, 72 N. Y., 394.

(c) Cannot prove specific acts by others.-Specific acts cannot be proved by other witnesses for the object of discrediting him. (People v. Reavey, 4 N.Y. Cr. R., 25, 1 N. Y. State Rep., 438. People v. Ware, 1 N. Y. Cr. R., 166. (d) Former convictions may be proved.-See Penal Code, § 714.

(e) Disparaging questions.-The prosecution can ask the defendant upon cross examination, how often he has been in prison, and what for. (People v. Hocey, 1 N. Y. Cr., R., 180; 92 N. Y., 554.

(f) The true rule.-The true rule as to the admissibility of disparaging questions, seems to be, that they must relate or be relevant to the issue, or such as clearly go to impeach the moral character and credibility of the witness. (People v. Noelke, 94 N. Y., 137. People v. Crapo, 76 id. 288. People v. Casey, 72 id.. 394.

(g Bad character shown affects credibility only.-Where the accused is examined as a witness in his own behalf, and offers no evidence of good character to prove his innocence, and the prosecution gives evidence of his bad character, the jury cannot consider such evidence as going to the question of his guilt or innocence but only as to his credit ability as a witness. (Adams v. People, 9 Hun, 89.)

(h) Perjury.-A witness though acquitted of the crime charged renders himself liable to an indictment for perjury for the testimony he has given on his own behalf, although the testimony in the two cases are the same. (People v. Skully, 3 N. Y. Cr. R., 245.

(i) Cannot ask if he has ever been arrested.-A witness cannot be asked, on cross-examination, for the purpose of impeaching him, whether he has ever been arrested. (Wright v. People, 1 Cr. R., 464. People v. Crapo, 76 N. Y., 291. Ryan v. People, 79 N. Y., 599.

§ 394. Compensation of witness.-The rules as to the compensation of witnesses attending trials in criminal cases, prescribed by special statutes, are continued as there defined.

3 R. S., 1024.

§ 395. Confession of defendant, when evidence. and its effect.— A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.

(a) Statement after crime admissible.-A confession is to be treated as evidence of the corpus delicti, although insufficient without corroboration to warrant a conviction. People v. Jaehne, 4 N. Y. Cr. R., 478, 3 N. Y. State Rep.,11. (b) Confession to police officer.-A confession to a police officer which does not appear to have been made under the influence of fear produced by threats, or upon a stipulation for immunity from prosecution is admissible—(Id). (c) Must be corroboration.-The corroboration may be either direct or circumstantial. (People v. Carr, 3 N. Y. Cr. R. 578.)

When in addition to the confession, there is proof of circumstances, which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of the crime, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for failure of corroboration. (People v. Jaehne, 4 N. Y. Cr. R., 478; 3 N. Y. State Rep. 11.) Upon a trial for contriving or assisting in contriving a lottery the confession of the defendant, consisting of his explanation of the contrivance to purchaser, is sufficiently corroborated by proof of such purchase and the produc tion of the article purchased to warrant a conviction. (People v. Rauge, 3 N. Y. Cr. R., 85.)

It is not necessary there should be evidence enough outside of the confession to satisfy the jury. (People v. Mondon, 4 Cr. R.,117.)

(d) Statement made under oath.-A confession is not rendered inadmissible because the statement was made under oath. (People v. Mc' Gloin, 91 N. Y. 241.) (e) Statement by police officer when not a threat.-A statement made by a police officer to defendant, that they had found enough to convict her and she might as well own up, is not a threat. (People v. M'Callam, 3 N. Y., Cr. R., 190; 5 id. 143.)

(f)What not deemed a confession.-A declaration of one accused explaining to her advantage certain suspicious circumstances, is not to be deemed a confession under this section. (Id.)

(g) Statement before coroner.-Statement made before a coroner's jury by one suspected of the crime and who is under arrest without a warrant, cannot be used against him on the trial. (People v. Mondon, 4 N. Y., Cr. R., 552.) But the testimony of a person at a coroner inquest held before any person has been arrested charged with the crime, may be used against such witness upon his trial for the offense. (Id.)

(h) Application of this section.-This section only applies to voluntary confessions, and does not change the statutory rules relating to the examination of persons charged with a crime. (Ib.)

(i) When examination not admissible-An examination of a person arrested upon a criminal charge conducted in violation of the statutory provisions, is not admissible against him. (Ib.)

(j) Confession of accused.-Where the district attorney informed the prisoner after his arrest that he need not make certain statements which he did make, as they would probably be used against him, held, that such statements, being voluntary, might be received in evidence against the accused on the trial. (Willett v. People, 27 Hun, 469.)

(k) What insufficient corroboration.-Admissions of defendant that after assigning for value his wages to one C. he had received and spent them himself, are insufficient, without other evidence than the written assignment of the said wages to C. to convict him of larceny. (People v. Kelly, 3 N. Y. Crim. R. 414; S. C., 37 Hun, 160.)

(1) Silence of prisoner, effect of.-Evidence that a prisoner remained silent when charged with the commission of a crime is admissible. (Kelly v. People, 55 N, Y., 565; People, v. Meyers, 5 N. Y., Cr. R. 120. 7 N. Y. State Rep. 217.

(m) Silence as to admission.-The doctrine as to the silence of a person being implied admission to the truth of allegations spoken or uttered in his presence does not apply to silence at a judicial proceeding or hearing. (People V. Willett, 92 N. Y. 29; 27 Hun, 469.)

The silence of a defendant, where he should have spoken, can only be taken to be an admission when it is proved that he heard the statement he ought to have denied. People v. Hatfelder, 5 N. Y. Cr. R. 179.

(Id.)

An examination before a coroner is a judicial proceeding. This rule only applies against a person who is so far concerned in what is said, that unless he speaks his silence may be fairly so construed. Wright v. Peo ple 1 N. Y., Cr. R. 462.

(n) Confession of one, when evidence against the other.-When the evidence justifies the influence of a common purpose or conspiracy, the acts or declarations of one relating to the charge in question, is competent, although made in the absence of the others, and the act of one, is the act of all. (People v. Bassford, 3 N. Y., Cr. R. 224. Cuyler v. McCartney, 40 N. Y., 221. Dervey v. Moyer, 72 N. Y., 70.

(6) By artifice.-A confession, if voluntary, may be read in evidence, though obtained by fraud or improper inducements not coming within the prohibitions. The weight to be attached to it is for the jury. (Jefferds v. People, 5 Park., 522.)

(p) Voluntary confession made under arrest.--A voluntary confession, otherwise admissible, is not rendered inadmissible, by the fact it was made by a person under arrest at the time it was made. (People v. Druse, 5 N. Y., Cr. R. 10.)

§ 396. Evidence on trial for treason.-Upon a trial for treason the defendant cannot be convicted, except upon the testimony of two witnesses to the same overt act, or of one witness to one overt act, and another witness to a different overt act of the same treason. But if two or more distinct treasons, of different kinds, be alleged in the indictment, two witnesses to prove different treasons are not sufficient to warrant a conviction.

§ 397. Evidence on trial for treason.-Upon a trial for treason, evidence cannot be admitted, of an overt act not expressly charged in the indictment; nor can the defendant be convicted, unless one or more overt acts be expressly alleged therein.

§ 398. Evidence on trial for conspiracy.-Upon a trial for a conspiracy, in a case where an overt act is necessary to constitute the crime, the defendant cannot be convicted, unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts alleged be proved; but any other overt act, not alleged in the indictment, may be given in evidence.

(a) What is an overt act.-Where a number of men combine together to in