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

§ 437. All challenges to an individual juror, except peremptory, must be taken, first by the defendant, and then by the people: and each party must exhaust all his challenges, before the other begins.

§ 438. 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: 1. To the panel:

2. To an individual juror, for a general disqualification:

3. To an individual juror, for implied bias :

4. To an individual juror, for actual bias.

§ 439. If all the challenges on both sides be disallowed, the defendant may still take a peremptory challenge, unless the peremptory challenges be exhausted.

The last four sections are the same as the existing practice.

TITLE VII.

OF THE TRIAL.

CHAPTER I. The trial.

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

CHAPTER. I.

THE TRIAL.

SECTION 440, 441. In what order, trial to proceed.

442. Number of counsel who may argue the cause to the jury.
443. Defendant presumed innocent, until contrary proved. In case
of reasonable doubt, entitled to acquittal.

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

445. Separate trial of defendants jointly indicted.

446, 447. Discharging one of several defendants, before verdict, that he may be a witness. Effect of the discharge.

448. Rules of evidence in civil cases applicable in criminal cases, except where otherwise provided in this code.

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

450, 451. Evidence on trial for treason.

452. Evidence on trial for conspiracy.

453. Evidence on trial for rape, or the crime against nature.

454. Conviction cannot be had on testimony of accomplice, unless

corroborated.

455. On trial for false pretences, no evidence of pretences admissible, unless in writing. But this section not applicable to prosecution for falsely representing or personating another, and in such character, receiving money or property.

456. Conviction cannot be had for abduction or seduction unless testimony of person injured be corroborated.

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

ment.

458. If new indictment not found, defendant to be re-tried on the

original indictment.

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

460. Proceedings, if jury discharged for want of jurisdiction of the offence, when committed out of the state.

461-464. Proceedings in such case, when offence committed in the state. 465, 466. Proceedings, if jury discharged because the facts do not constitute an offence.

467. When evidence on either side is closed, court may advise acquittal. Effect of the advice.

468, 469. View of premises, when ordered, and how conducted.

470. Knowledge of juror, to be declared in court, aud juror to be sworn as witness.

471. Jurors may be permitted to separate during the trial. If kept together, oath of the officers.

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

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

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

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

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

477. In charging jury, court to state all necessary matters of law, and to inform them that they are the exclusive judges of all questions of fact.

478. Jury may decide in court, or retire in the custody of officers.

Oath of the officers.

479. When defendant on bail appears for trial, he may be committed.

§ 440. The jury having been impanelled and sworn, the trial must proceed in the following order:

1. If the indictment be for a felony, the clerk or district attorney must read it, and state the plea of the defendant to the jury. In all other cases, this formality may be dispensed with:

2. The district attorney, or other counsel for the people, must open the case, and offer the evidence in support of the indictment :

3. The defendant or his counsel may then open his defence, and offer his evidence in support thereof:

4. The parties may then, respectively, offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case:

5. 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 commence, and the defendant, or his counsel, may conclude the argument to the jury.

6. The court must then charge the jury:

This section is in conformity with the existing practice, except the 5th sub-division, which gives to the defendant or his counsel the right to conclude the argument to the jury. This provision, independently of the high authority of Mr. Livingston, seems to the Commissioners to be well sustained, not merely by every consideration of humanity, but by every principle of justice. In defending its introduction, that learned jurist observes--" The order in which the case is opened to the jury, and the proof introduced, is the same as that now in use; but a material change is made, by giving the closing argument to the defendant. It was thought that this was proper and just, because it is an advantage, that is to say, a benefit to one party, that the other does not and cannot, from the nature of things, enjoy. To whom shall this be given,— to the accuser or the accused, to him who asserts or him who denies? Humanity and justice seem to dictate the answer. Every address to a judge must be supposed to contain a new allegation of fact, a new argument, or a new answer to rebut those which have been offered on the other side. To close the debate, therefore, without suffering the accused to reply to such allegation or argument, would be, in so much as regards it, to decide on his case without hearing him. The same thing may be said of the prosecution. The remedy would be, to suffer the argument to go on, until both parties declared they had nothing further to say; but this would rarely happen, and never until the discussion had been protracted to a length so highly inconvenient as not to be permitted. It seems, then, as has been said, that the nature of the case imposes the necessity of giving this advantage to the one party or the other. To give it to the prosecution, sometimes defeats the ends of justice, by enlisting the feelings of humanity on the side of the accused. There is in human nature, when not perverted, a feeling repugnant to oppression, which generally supposes power to be wrong, and ascribes innocence to weakness, whenever they come in competition

with each other; and few cases give such scope to the imagination to exert itself in this way, as that of a criminal on his trial. Squalid in his appearance, his body debilitated by confinement, his mind weakened by misery or conscious guilt, abandoned by all the world, he stands alone, to contend with the fearful odds that are arrayed against him. It is true, he has counsel assigned him; but here again the same feelings operate, to lead the judgment astray. This counsel is generally the youngest counsellor at the bar, who is thus made to enter the lists with one of the highest abilities and standing; -with a reputation so well established as to have made him the choice of government, as the depository of its interests. If you add to all this, the decided advantage of the closing argument, given to a practised advocate, whom long habit has taught to avail himself of every weak argument or suspicious fact, and a zeal in the performance of his duty has taught to believe it proper to do so:-do this, and of two opposite effects, one must be produced, both injurious to the fair administration of justice: either the jury will be swayed by the sentiment I have endeavored to describe, and feel an undue bias in favor of the prisoner: or if this fails to act, the last inexpression given with the force of eloquence and professional skill, may, in doubtful cases, have injurious consequences to the innocent. But give the last word to the accused, and you will do little more than counterbalance the disadvantages inseparable from his situation; while, by this show of humanity and disdain of using the power in your hands, you neutralize the sentiment that would otherwise be felt in his favor. The provision here recommended makes part of the French code of criminal procedure, and it is said to have, in practice, the most beneficial effects." Liv. Crim. Code, 232, 233.

In addition to the high authority of Mr. Livingston in its support, the Commissioners have been informed that petitions, very numerously signed, from the county of Chenango, and other counties, were presented at a recent session of the legislature.

"Your pe

The petitioners among other things, well say: titioners deem it a matter of right to every person accused, to be allowed to answer the arguments urged, as well as the proofs given against him, which often, (and especially in cases of innocence,) affect him more injuriously than the evidence itself. Upon a trial lasting several days, or it may