§ 386. Order of challenges. party must be taken: 1. To the panel. Challenges of either 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. 5. Peremptory. (387. Jury to be sworn, etc.-The first twelve per sons who appear, as their names are drawn and called who are proved as indifferent between the parties, and are not discharged or excused, must be sworn; and constitute the jury to try the issue. Improper treatment of a juror by court, ground for new trial. Peo. ex rel. Flaherty . Neilзon, 22 Hun, 1. CHAPTER I. The trial. TITLE VII. Of the trial. II. Conduct of the jury, after the cause is submitted to them. III. The verdict. CHAPTER I. THE TRIAL. SEC. 388. In what order trial to proceed. 389. Defendant presumed innocent, until contrary proved. 391. Separate trial of defendants jointly indicted 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 indictment. SEC. 401. If new indictment not found, defendant to be tried on the original indictment. 402. Court may discharge jury, where it has not jurisdiction 408, 409. Proceedings, if jury discharged because the facts 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 sub mitted. 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. 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 impaneled 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 submitted 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. Withdrawal of juror. Peo. v. Barrett, 2 Cai., 304; Grant v. Peo., 4 Park., 527. See McFall v. Peo., 18 Hun, 382; Babcock v. Peo., 15 Hun, 347; Peo. v. Lopez, 2 Edm. S. C., 262. § 389. Defendant presumed innocent. Reasonable doubt.-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. Applies to mental responsibility. O'Connell v. Peo., 87 N. Y., 377. When burden with prisoner. Bradford v. Peo., 20 Hun, 309. Extent of doubt. Toole v. l'eo., 80 N. Y., 615; Levy v. Peo., 80 ib., 327; Mayor v. Peo. ib., 364; Murphy v. Peo., 4 Hun, 102. § 390. Reasonable doubt as to degrees. 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. When § 391. Separate trials on joint indictment. 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. Where four are jointly indicted, three of them cannot insist upon the fourth being tried with them. Armsby v. Peo., 2 S. C., 157 Kelley v Peo., 55 N. Y., 565. District attorney determines order of separate trials. Patterson v. Peo., 46 Barb., 625. May demand after jury empanelled. 15 Hun, 347. Witnesses against each other. Peo. v. Satterlee, 5 Hun, 167; Taylor v. Peo., 12 id., 212; for each other, Peo. v. Dowling, 84 N. Y., 478. $392. Rules of evidence. The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code. § 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 create any presumption against him. Cross-examination of defendant. Peo. v. Crapo, 76 N. Y., 288; Peo. v. Genet, 19 Hun, 91. See Stover v. Peo., 56 N. Y., 315; Newman v. Peo., 63 Barb., 630; Peo. v. Brandon, 42 Ń. Y. 265; Connors v. Peo., 50 N. Y., 240; Peo. v. Casey, 72 N. Y., 393; Peo. v. Moett, 23 Hun, 60; Peo. v. Greenfield, 23 Hun, 454 Maine v. Peo., 9 Hun, 113. May testify as to intent. Kerrains v. Peo., 60 N. Y., 221. Failure to supply evidence. Brulo v. Peo., 16 Hun, 119; Peo. v. Hovey, 29 Hun, 382; 92 N. Y., 554. § 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. § 395. Confession of defendant.-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 tipulation 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. . What additional proof necessary. Peo. v. Henessy, 15 Wend., 147; Peo. v. Badgley, 16 ib., 53. Šilence under accusation. Peo. v. Kelley, 55 N. Y., 565; Willett v. Peo., 27 Hun, 469; s. c., 1 N. Y. Cr., 355. § 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. Id.—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. 1 N. Y. Cr. L., 337. $399. Testimony of accomplice.-A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. See Peo. v. Davis, 21 Wend., 309; Peo. v. Costello, 1 Den., 83; Lindsay v. Peo., 5 Hun, 104; 63 N. Y., 143; Peo. v. Courtney, 28 Hun, 589; Peo. v. Williams, 29 Hun, 520; Peo. v. Ryland, 28 Hun, 568; Peo. v. Smith, ib., 626; Peo. v. Noelke, 29 Hun, 461. § 400. Testimony showing higher offense.-If it appear by the testimony, that the facts proved constitute a crime of a higher nature than that charged in the indictment, the court may direct the jury to be discharged, and all proceedings 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 offense. § 401. If new indictment not found, to be tried on the original.—If an indictment for the higher crime be dismissed by the grand jury, or be not found at or before the next term, the court must again proceed to try the defendant on the original indictment. § 402. Want of jurisdiction.-The court may also direct the jury to be discharged, where it appears that it has not jurisdiction of the crime, or that the facts, as charged in the indictment, do not constitute a crime. § 403. Proceedings, on discharge when beyond state jurisdiction.-If the jury be discharged, because the court has not jurisdiction of the crime charged in the indictment, and it appear that it was committed out of the jurisdiction of this state, the court may order the defendant to be discharged, or to be detained for a reasonable time specified in the order, until a communication can be sent by the district attorney to the chief executive officer of the state, territory or district where the crime was committed. § 404. Proceedings when offense committed in the state. If the crime were committed within the exclusive jurisdiction of another county of this state, the |