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alleged on a


SEC. 349. In a challenge for implied bias, one or more of the causes What must be stated in section three hundred and forty-seven must be alleged. In challenge for a challenge for actual bias, it must be alleged that the juror is biased against the party challenging. In either case the challenge may be oral, but must be entered on the minutes of the court.

to challenge.

SEC. 350. The adverse party may except to the challenge in the same Excepting manner as to a challenge to the panel, and the same proceedings shall be had thereon as prescribed in sections three hundred and thirty-two and three hundred and thirty-three, except that if the exception be allowed, the juror shall be excluded. He may orally deny the facts alleged as the ground of challenge.


SEC. 351. If the facts be denied, the challenge shall be tried as Trial of follows: 1st. If it be for implied bias, by the court. 2d. If it be for actual bias, by triers.

SEC. 352. The triers shall be three impartial persons, not on the Who to be triers jury panels, appointed by the court; all challenges for actual bias shall be tried by three triers thus appointed, a majority of whom may


SEC. 353. The triers shall be sworn generally to inquire whether Oath to triers. or not the several persons who may be challenged, and in respect to whom the challenges shall be given to them in charge, are biased against the challenging party, and to decide the same truly according to the evidence.

be examined.

SEC. 354. Upon the trial of a challenge to an individual juror, the Juror may juror challenged may be examined as a witness to prove or disprove the challenge, and shall be compelled to answer every question pertinent to the inquiry therein.


SEC. 355. Other witnesses may also be examined on either side, And other 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. 356. On the trial of the challenge for an implied bias, the Court to court shall determine the law and the facts, and shall either allow or law and fact. disallow the challenge, and direct an entry accordingly on the minutes.

to triers of

SEC. 357. On the trial of a challenge for actual bias when the ev- Instructions idence is concluded, the court shall instruct the triers that it is their challenges. 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 if from the evidence they believe him free from such bias, they must find the challenge not true. The court shall give them no other instruction. SEC. 358. The triers must thereupon find the challenge either true

Triers' decision final.

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or not true, and the decision is final. If they find it true, the juror shall be excluded.

SEC. 359. 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 to each juror as he is called before the other begins.

SEC. 360. 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:

1st. To the panel.

2d. To an individual juror for a general disqualification.

3d. To an individual juror for an implied bias.

4th. To an individual juror for an actual bias.

SEC. 361. If all the challenges on both sides be disallowed, either party may still take a peremptory challenge, unless the peremptory challenges be exhausted.





SECTION 362. The jury having been empanneled and sworn, the trial shall proceed in the following order:

1st. If the indictment be for a 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.

2d. The district attorney or other counsel for the people must open the cause and offer the evidence in support of the indictment. 3d. The defendant or his counsel may then open the defence, and offer his evidence in support thereof.

4th. 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 cause.

5th. 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.

6th. The court shall then charge the jury, if requested by either party.

SEC. 363. When the state of the pleadings requires 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, but in every case the defendant shall have the right to close the argument to the jury.

counsel allowed on each side.

SEC. 364. If the indictment be for an offence punishable with death, When two 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. 365. A defendant in a criminal action is presumed to be in- Innocence nocent 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. 366. When it legally appears that a defendant has committed Degree of guilt. 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. 367. When two or more defendants are jointly indicted for a Separate trials. felony, any defendant requiring it shall be tried separately. In other cases the defendants jointly indicted shall be tried separately or jointly in the discretion of the court.

may be

SEC. 368. When two or more persons are indicted in the same in- One defendant dictment, the court may at any time before the defendant has discharged, gone into his defence, 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.

and called
as a witness.

SEC. 369. When two or more persons are included in the same in- The like.
dictment, and the court is of opinion that in regard to a particular
defendant there is not sufficient evidence to put him on his defence, it
shall order him to be discharged from the indictment, before the evi-
dence shall be deemed closed, that he may be a witness for his co-

deemed an

SEC. 370. The order mentioned in the last two sections shall be Such discharge deemed an acquittal of the defendant discharged, and shall be a bar acquittal. to another prosecution for the same offence.

to convict

SEC. 371. Upon a trial for treason the defendant cannot be con- Evidence victed unless upon the testimony of two witnesses to the same overt of treason. act, or upon confession in open court.

SEC. 372. Upon a trial for treason evidence shall not be admitted The like. for an overt act not expressly charged in the indictment, nor shall the defendant be convicted unless one or more overt acts be expressly alleged therein.

SEC. 373. Upon a trial for conspiracy in a case where an overt act Conspiracy.


Evidence of accomplice.

Evidence of false pretence.


Evidence to convict of seduction.

Where higher offence proved than that charged.

is required by law to constitute the offence, 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 other overt acts not alleged in the indictment may be given in evidence. SEC. 374. Proof of actual penetration into the body is sufficient to sustain an indictment for rape or for the crime against nature.

SEC. 375. 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.

When jury discharged..

SEC. 376. Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretence, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property, or valuable thing, no evidence shall be admitted of a false pretence expressed in language and unaccompanied by a false token or writing, unless the pretence or some note or memorandum thereof be in writing, either subscribed by or in the handwriting of the defendant. (1)

SEC. 377. The last section shall not apply to a prosecution for falsely representing or personating another, and in such assumed character receiving any money or property.

SEC. 378. Upon a trial for having, under promise of marriage, seduced and had illicit connexion with an unmarried female of previous chaste character, the defendant shall not be convicted upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offence.

SEC. 379. 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 proceedings on the indictment to be superseded, 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.

Where no indictment for

SEC. 380. If an indictment for a higher offence be dismissed by the higher offence. 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. 381. 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

(1) See Stat. 1850, page 245, Sec. 131.

charged in the indictment do not constitute an offence punishable by law.

discharging jury.

SEC. 382. If the jury be discharged because the court has not juris- Effect of diction of the offence charged in the indictment, and it appear that it was committed out of the jurisdiction of this state, it shall order the defendant to be discharged.


jurisdiction of

SEC. 383. If the offence were committed within the exclusive juris- Where offence diction of another county of this state, the court shall direct the within the defendant to be committed for such time as shall be deemed reason- another county. able 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 securities 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. 384. In the case provided for in the last section, the clerk Copy of shall forthwith transmit a certified copy of the indictment, and of all to be transmitted the papers filed in the action, to the district attorney of the proper county, the expense of which transmission shall be chargeable to that

to proper county.


to be discharged.

SEC. 385. If the defendant be not arrested, as provided in section when defendant three hundred and eighty-three, 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.

on arrest.

SEC. 386. If he be arrested, the same proceedings shall be had Proceedings thereon as upon the arrest of a defendant in another county, on a warrant of arrest issued by a magistrate.

jury, because

not constitute

SEC. 387. If the jury be discharged because the facts as charged Discharge of do not constitute an offence punishable by law, the court shall order facts proved do that the defendant, if in custody, be discharged; or if admitted to an offence. bail, that his bail be exonerated, 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. 388. If the court direct that the case be submitted anew, the

Case submitted anew

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