3. Being a party adverse to the defendant in a civil action or having complained against, or been accused by him in a criminal prosecution;

4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment;

5. Having served on a trial jury, which has tried another person for the crime charged in the indictment;

6. Having been one of a jury formerly sworn to try the same indictment, and whose verdict was set aside or which was discharged without a verdict, after the cause was submitted to it;

7. Having served as a juror, in a civil action brought against the defendant, for the act charged as a crime;

8. If the crime charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he shall neither be permitted nor compelled to serve as a juror.

Subd. 1. See Cole v. Van Keuren, 51 How. Pr. 451; Cain v. Ingham, 7 Cow. 478; Eggleston v. Smithby, 17 John. 133.

Subd. 2. People v. McQuade, 110 N. Y. 284; 21 Abb. N. C. 417.

Subd. 6. Barclay v. People, 8 Abb. L. J. 104.

Subd. 8. People v. Damon, 13 Wend. 351; People v. Ryan, 2 Wheeler Cr. Cases, 47; Walter v. People, 32 N. Y. 147; 6 Park. 15; Gordon v. People, 33 N. Y. 511; O'Brien v. People, 36 1d. 276; 3 Abb. (N. S.) 371; 48 Barb. 274; Lowenberg v People, 5 Park 425; People v. Wilson, 3 id. 199; People v. Carolin, 115 N. Y. 659; 2 Sil. (Ct. App.) 392; 7 N. Y. Cr. 125.

See People v. Carpenter, 38 Hun, 492; 4 N. Y. Cr. 46; People v. Ah Chung, 54 Cal. 402; People v. Clark, 62 Hun, 84.

§ 378. Grounds of challenge for actual bias.-A challenge for actual bias may be taken for the cause mentioned in the second subdivision of section 376, and for no other cause.

People. McQuade, 110 N. Y. 284; 21 Abb. N. C. 447.

§ 379. Exemption, etc.-An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted. General grounds of exemption. Code of Civ. Pro. §§ 1030, 1031. Id. in Kings county. Ib. §§ 1127, 1128. Id. in city and county of New York. Ib. §§ 1081, 1082. See People v. Morissey, 1 Sheld. 295; Green v. State, 59 Md. 123; 43 Am. Rep. 542; United States v. Lee, 4 Mackey, 498; 54 Am. Rep. 293.

§ 380. Causes of challenge, etc.-In a challenge for implied bias, one or more of the causes stated in section 377 must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section 376 must be alleged. In either case, the challenge may be oral, but must be entered upon the minutes of the court.

See Freeman v. People, 4 Den. 131; People v. Otto, 101 N. Y. 690; 4 N. Y. Cr. 155.

§ 381. Exceptions to challenge, etc.-The adverse party may except to the challenge, in the same manner as to a challenge to the

panel; and the same proceedings must be had thereon, as prescribed in section 364, except that, if the challenge be allowed, the juror must be excluded. The adverse party may also orally deny the fact alleged as the ground of challenge.

§ 382. Challenge, how tried, etc.- If the facts be denied, the challenge must be tried by the court which must either allow or disallow the same and direct an entry accordingly on the minutes. If the challenge be allowed, the juror must be discharged.

Greenfield v. People, 74 N. Y. 277; State v. Pike, 49 N. H. 399; 6 Am Rep. 542.

§ 383, Juror challenged may be examined, etc.— Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness, to prove or disprove the challenge; and is bound to answer every question pertinent to the inquiry therein. People v. Welch, 1 N. Y. Cr. 488.

§ 384. Rules of evidence, etc.-Other witnesses may also be examined on either side; and the rules of evidence applicable to the trial of other issues, govern the admission or exclusion of testimony, on the trial of the challenge.

People v. Welch, 1 N. Y. Cr. 488.

§ 385. Order of challenges.— Challenges to an individual juror must be taken, first by the people and then by the defendant.

People v. McQuade, 110 N. Y. 284; 21 Abb. N. C. 417, 434, 436, 454, n; People v. McGonegal, 42 N. Y. St. Rep. 310.

§ 386. Order of challenges.- Challenges of either party must be taken :

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.

5. Peremptory.

People v. Welch, 1 N. Y. Cr. 488; see 21 Abb. N. C. 454, n.

§ 387. Jury to be sworn, etc.-The first twelve persons 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. People ex rel. Flaherty v. Neilson, 22 Hun, 1; People v. Carpenter, 102 N. Y. 238; 3 N. Y. Cr. 98.

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. In case of reasonable doubt, entitled to acquittal.

390. When reasonable doubt of which degree he is guilty, he must be con

victed of the lowest.

391. Separate trial of defendants jointly indicted.

392. Rules of evidence in civil cases applicable in 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 can not be had on testimony of accomplice, unless
corroborated.

400. If testimony show higher crime than that charged, court may dis-
charge jury, and hold defendant to answer a new indictment.
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 become 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 People v. Barrett, 2 Cai. 304; Grant v. People, 4 Park. 527. See McFall v. People, 18 Hun, 382; Babcock v. People, 15 Hun, 347; People v. Lopez, 2 Edm. S. C. 262. Time allowed counsel discretionary. People v. Kelly, 2 N. Y. Cr. 15. Charge. People v. Petmecky, ib. 450; People v. Dumar, 106 N. Y. 505; People v. Buddensieck, 103 N. Y. 487; People v McCallam, 3 N. Y. Cr. 189; People v. Ward, id. 483; People v. Palmer, 43 Hun, 397.

§ 389. Defendant presumed innocent, etc.; 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. People, 87 N. Y. 377. When burden with prisoner. Bradford v. People, 20 Hun, 309. Extent of doubt. Poole v. People, 80 N. Y. 645; Levy v. People, 80 id. 327; Mayor v. People, id. 364; Murphy a People, 4 Hun, 102; People v. Petmecky, 2 N. Y. Cr. 450, aff'd 99 N. Y. 415; People v Willett, 36 Hun, 500; People v. Kiernan, 3 N. Y. Cr. 247; People v. Reavey, 33 Hun, 418; People v. Cruger, id. 500; People v. Van Houter, id. 168. People v. Guidici, 100 N. Y. 503; 3 N. Y. Cr. 551; 2 E. R. 923; People v. Coleman, 1 N. Y. Cr. 1; Walker v. People, id. 7, 22; 88 N. Y. 81; Sawyer v. People, 91 id. 667; 1 N. Y. Cr. 249; Smith v. People, id. 330; People v. Moett, 23 Hun, 60; 85 N. Y. 373; People v. Newton, 3 N. Y. Cr. 406; People v. Riley, id. 374; People v. Stott, 4 id. 306; People v. Schryver, 42 N. Y. 1; People v. Riordan, 117 id. 73; People v. Stone, id. 480; People v. Briggs, 114 id. 64; People v. Pollock, 52 Hun, 613; People v. Pavlik, 7 N. Y. Cr. 30; People v. Downs, 56 Hun, 11; aff'd 123 N. Y. 558; Freund v. Paten, 10 Abb. N. C. 311; 10 Daly, 382; Davis v. Rome, etc. R. Co. 56 Hun, 372; State v. Rounds, 76 Me. 123; Dunn v. People, 109 III. 635; State v. Meyer, 58 Vt. 457; State v. Gann, 72 Mo. 374; Wade v. State, 71 Ind. 535; Wright v. State, 69 id. 163; Watt v. People, 126 Ill. 9; Miles v. United States, 103 U. S. 304; Com. v. Leonard, 140 Mass. 473; Cont. Ins. Co. v. Jachnichen, 110 Ind. 59; 59 Am. Rep. 191; Mead v. Husted, 52 Conn. 53; 52 Am. Rep. 554; State v. Sauer, 38 Minn. 438; Shook v. Lyon, 34 N. Y. St. Rep. 21; See 7 Abb. N. C. 357, note.

§ 390. When reasonable doubt, etc. 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.

People v. Downs, 56 Hun, 6; aff'd, 123 N. Y. 588; People v. Willett, 36 Hun, 500; 3 N. Y. Cr. 324; People v. Lamb, 2 Abb. (N. S.) 148.

§ 391. Separate trials, etc.- 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.

Where four are jointly indicted, three of them can not insist upon the fourth being tried with them. Armsby v. People, 2 S. C. 157; Kelly v. People, 55

Patterson v.

N. Y. 565. District attorney determines order of separate trials People, 46 Barb. 625. May demand after jury empanelled. Babcock v. Peo. ple, 15 Hun, 317. Witnesses against each other. People v. Satterlee, 5 Hun, 167; Taylor v. People, 12 id. 212; for each other, People v. Dowling, 84 N. Y. See People v. Judson, 11 Daly, 1, 23; People v. Clark, 38 Hun, 214; 102 N. Y. 735; 4 N. Y. Cr. 575; White v. People, 32 id. 465; Klein v. People, 31 id. 229; People v. Dowling, 84 id. 484; People v. Stockham, 1 Park, 428; Wixson v. People, 5 id. 119; People v. Cotto, 42 N. Y. St. Rep. 713, 716.

478.

§ 392. Rules of evidence; witness under twelve years.-The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code. [Whenever in any criminal proceedings a child actually or apparently under the age of twelve years offered as a witness does not in the opinion of the court or magistrate understand the nature of an oath, the evidence of such child may be received though not given under oath if, in the opinion of the court or magistrate such child is possessed of sufficient intelligence to justify the reception of the evidence. But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence.]

33 A. L. J. 149; People v Chacon, 3 N. Y. Cr. 418; People v. Murphy, 101 N. Y. 126; 3 How. (N. S.) 469; 4 N. Y. Cr. 95; 15 Hun, 347; People v. Beach, 87 N. Y. 512; People v. Brower, 53 Hun, 219; People v. Kelly, 35 Hun, 304; 3 N. Y. Cr. 46; People v. Burns, 33 Hun, 300; 2 N. Y. Cr. 427; People v. Thayer, 1 Park. 596; Van Bokkelen v. Berdell, 41 N. Y. St. Rep. 312, 314; People v. Lewis, 42 id. 768, 772.

§ 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. People v. Crapo, 76 N. Y. 288; People v. Genet, 19 Hun, 91. See Stover v. People, 56 N. Y. 315; Newman v. People, 63 Barb 630; People v. Brandon, 42 N. Y. 265; Connors v. People, 50 N. Y. 240; People v. Casey, 72 N. Y. 393; People v. Moett, 23 Hun, 60; People v. Greenfield, 23 Hun, 454; Maine v. People, 9 Hun, 113. May testify as to intent. Kerrains v. People, 60 N. Y. 221. Failure to supply evidence. Brulo v. People, 16 Hun, 119; People v. Hovey, 29 Hun, 385; 92 N. Y. 551; People v. Courtney, 94 N. Y. 490; 1 N. Y. Cr. 557; 31 Hun, 202; People v. Guidici, 100 N. Y. 507; People v. Clark, 102 id. 735; People v. Oyer, etc. 83 id. 438, 460; People v. Noelke, 94 id. 137; Ryan's case, 79 id. 594; People v. Brown, 72 id. 571; People v. Irving, 95 id 541; Spiegal v. Hays, 118 N. Y. 661; Le Beau v. l'eople, 34 id 230; Great W. T. Co. v. Loomis, 32 id. 127; People v. Moett, 23 Hun, 60; 85 N. Y. 373; Ormsby v. People, 53 id. 472; People v. Crowley, 102 N. Y. 231; 4 N. Y. Cr 168; People v. Kiernan, 3. id 247; Newman v. People, 63 Barb. 630; People v. Rose, 52 Hun, 38; People v. Sweeney, 41 id. 332; 4. N. Y. Cr. 276; People v. Scully, 3 id. 244; Wright v. People, 1 id 462; People v. Beckwith, 4 id. 335; Gordon v. People, 33 N. Y. 508; Ruloff v. People, 45 id. 221.

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

See fi 615, 731, post.

§ 395. Confession of defendant, etc.-A confession of a defendant, whether in the course of judicial proceedings or to a private person,