On a motion to quash it is not necessary that the defendant be present in court during the argument. People v. Vail, 57 How. Pr. 81; 6 Abb. N. C. 206.

§ 357. Preparation for trial.—After his plea, the defendant is entitled to at least two days to prepare for his trial, if he require it.

CHAPTER II.

FORMATION OF THE TRIAL JURY.

SECTION 358. Jurors in criminal courts.

§ 358. Jurors in criminal courts. The trial jury is formed, as prescribed by the Code of Civil Procedure.

See People v. Jackson, 111 N. Y. 369; 11 Crim. L. Mag. 223; People v. Johnson, 110 N. Y. 140; 46 Hun, 672.

The legislature may regulate the manner of procuring a jury. Stokes v. People, 53 N. Y. 164; Gardner v. People, 6 Park. 155.

Where mere irregularities in drawing a jury are not prejudicial to defendant, they are not grounds of error. Cox v. People, 80 N. Y. 500; Friery v. People, 2 Keyes, 425; Ferris v. People, 35 N. Y. 125; Dolan v. People, 64 id. 485 People v. Petrea, 30 Hun, 98; 92 N. Y. 128.

Qualifications of jurors. Code Civ. Proc., § 1027-1082, inclusive; formation of the jury, Id., §§ 1163–1180, inclusive; Id., §§ 1190, 3350, 3351.

An alien is not entitled to a special jury. Id., § 1190.

Trial jurors in Kings county. Id., SS 1029, 1126-1162, 1174, 1191.

Trial jurors in the city and county of New York. Id., §§ 1029, 1079-1125, 1174, 1191.

CHAPTER III.

CHALLENGING THE JURY.

SECTION 359. Definition and division of challenges.

360. When there are several defendants, they must unite in their challenges.

361. Challenge to the panel, defined.

362. Upon what founded.

363. When and how taken.

364. If sufficiency of the facts be denied, adverse party may except; exception, how made and tried.

865. If exception overruled, court may allow denial of challenge; if allowed, may permit challenge to be amended.

SECTION 366. Denial of challenge, how made, and trial thereof.

367. Who may be examined on trial of challenge.

368. If challenge allowed, jury to be discharged; if disallowed, jury to be impanneled.

369. Defendant to be informed of his right to challenge an individual

juror.

870. Kinds of challenge to individual juror.

871. Challenge, when taken.

372. Peremptory challenge.

873. Number of peremptory challenges to which defendant is entitled 874. Definition and kinds of challenge for cause.

375. General causes of challenge.

376. Particular causes of challenge.

377. Grounds of challenge for implied bias.

378. Grounds of challenge for actual bias.

379. Exemption, not a ground of challenge.

380. Causes of challenge, how stated.

381. Exceptions to challenge and denial thereof.

382. Challenge, how tried, if denied.

383. Juror challenged may be examined as a witness.

384. Rules of evidence on trial of challenge.

385. Challenges, first by defendant and then by the people.

386. Order of challenges.

387. Jury to be sworn, etc.

§ 359. Definition and division of challenges.-A challenge is an objection made to trial jurors, and is of two kinds :

1. To the panel;

2. To an individual juror.

See People v. Petrea, 30 Hun, 98, 103.

§ 360. When there are several defendants, they must unite in their challenges. When several defendants are tried together they cannot sever their challenges, but must join therein.

See Abbott's Crim. Brief, § 300; Rapalje's Crim. Proc., § 185; State v. Earle, 13 Am. Rep. 109; People v. McCalla, 8 Cal. 301.

§ 361. Challenge to the panel defined.-A challenge to the panel is an objection made to all the trial jurors returned, and may be taken as well to the panel returned for the term, as to an additio nal panel order to complete the jury.

In People v. Packenham, 115 N. Y. 200, it was held that the objection that jurors had been discharged from the panel and excused from further service during the term is not one that may be taken on a criminal trial by a challenge to the panel. See, also, People v. Jackson, 111 N. Y. 369.

A prisoner can waive a challenge to the array after it is allowed. Pierson v. People, 79 N. Y. 424.

A challenge which has been overruled is not waived by asking the parties if they have any objections to the jurors that have been drawn, and a reply in the negative. Hathaway v. Helmer, 25 Barb. 29.

§ 362. Upon what founded.-A challenge to the panel can be founded only on a material departure, to the prejudice of the defendant, from the forms prescribed by the Code of Civil Procedure, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn.

See People v. Petrea, 92 N. Y. 128, 145; People v. McQuade, 21 Abb. N. C. 449.

An irregularity in the drawing of the jurors which cannot affect the right of the prisoner is not ground for challenge to the array. Ferris v. People, 35 N. Y. 125; 48 Barb. 17; 1 Abb. (N. S.) 193; Friery v. People, 2 Keyes, 424; 2 Abb. Dec. 215; 54 Barb. 319.

Not good ground that the panel was certified by the deputy clerk. People v. Fuller, 2 Park. 16; or on the ground that a certain class of persons were ex cluded in the selection of grand jurors. People v. Jewett, 3 Wend, 314.

Good ground for challenge, that certain jurors had not been dulysummoned. McCluskey v. People, 5 Park. 308.

Mode of selecting and relieving jurors when liable to challenge to the array. Gardiner v. People, 6 Park. 155.

It is no cause for challenge to the array that two sets of jurors were drawn at the same time from the jury box for two distinct courts, if they be kept entirely separate. Crane v. Dygert, 4 Wend. 675.

Nor that the panel was drawn more than fourteen days before the sitting of the court. Id.

A challenge to the array, if not made before the jurors are sworn, is waived. New York v. Mason, 4 E. D. Smith, 142; 1 Abb. 344.

The district attorney need not verify his answer to the challenge to the array. Gardiner v. People, 6 Park. 155.

The withdrawal of a challenge to the array is a waiver of any irregularity in the drawing of the jury. Pierson v. People, 18 Hun, 239; 79 N. Y.

424.

§ 363. When and how taken. A challenge to the panel must be taken before a juror is sworn, and must be in writing, specifying distinctly the facts constituting the ground of challenge. Challenge must be in writing. People v. Petrea, 30 Hun, 98, 103.

A challenge made in the alternative is bad. Cox v. People, 19 Hun, 430; 8G N. Y. 500. A challenge to the array, if not made before the jurors are sworn, is waived. New York v. Mason, 4 E. D. Smith, 142; 1 Abb. 344. An objec tion to a juror must be made when he is called upon a panel or it is waived. Secord v. Burling, 1 How. 175. See Lindsley v. People, 6 Park. 233.

$364. If sufficiency of the facts be denied, adverse party may except; exception, how made and tried.— If the sufficiency of the facts alleged as a ground of challenge be denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered upon the minutes of the court; and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true.

See § 381, post; People v. Petrea, 30 Hun, 98, 103.

It seems that a verification of a challenge is required. A demurrer to the challenge is not the proper way to raise the objection of want of verification Cox v. People, 80 N. Y. 500; 19 Hun, 430.

The district attorney need not verify his answer to the array. Gardiner v People, 6 Park. 155.

§ 365. If exception overruled, court may allow denial of challenge; if allowed, may permit challenge to be amended. If, on the exception, the court deem the challenge sufficient, it may, if justice require it, permit the party excepting, to withdraw his exception, and to deny the facts alleged in the challenge. If the exception be allowed, the court may, in like manner, permit an amendment of the challenge.

See People v. Petrea, 30 Hun, 98, 103.

§ 366. Denial of challenge, how made, and trial thereof, If the challenge be denied, the denial may, in like manner, be oral, and must be entered upon the minutes of the court; and the court must proceed to try the question of fact.

See People v. Petrea, 30 Hun, 98, 103.

If the plaintiff challenge the array for the default of the clerk in selecting the jurors, the defendant should join issue on the challenge, and triers be appointed. Gardner v. Turner, 9 Johns. 260.

A principal challenge for favor is triable by the court. Pringle v. Huse, 1 Cow. 432; People v. Vermilyea, 7 id. 108; Randall's Case, 5 C. H. Rec. 141. A challenge for principal cause may be tried by the court, and the decision of the court thereon is final. Stout v. People, 4 Park. 71; id. 132.

§ 367. Who may be examined on trial of challenge.Upon the trial of the challenge, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge.

$368. If challenge allowed, jury to be discharged; if disallowed, jury to be impanneled. If, either upon an exception to the challenge or a denial of the facts, the challenge be allowed, the court must discharge the jury, so far as the trial of the indictment in question is concerned. If the challenge be disallowed, the court must direct the jury to be impanneled.

§ 369. Defendant to be informed of his right to challenge an individual juror. — Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intend to challenge an individual juror, he must do so when the juror appears, and before he is sworn.

See People v. Carpenter, 36 Hun, 315; 16 Abb. N. C. 128; 3 N. Y. Cr. Rep. 98; affirmed, 102 N. Y. 247; 4 N. Y. Cr. Rep. 185; People v. McLaughlin, 3 id. 120.

370. Kinds of challenge to individual juror. A challenge to an individual juror may be taken either by the people or by the defendant, and is either

1. Peremptory, or

2. For cause.

See 1 Bish. Crim. Proc., § 940; Fouts v. State, 8 Ohio, 98; Mallison v. State, 6 Mo. 399; Wiley v. State, 4 Blackf. 458; Schaeffer v. State, 3 Wis. 823; People v. Coniff, 2 Park. 586.

The law giving the prosecution the right of peremptory challenge is constitutional. Walter v. People, 32 N. Y. 147; 6 Park. 15; 18 Abb. Pr. 147.

§ 371. Challenge, when taken.- A challenge must be taker when the juror appears, and before he is sworn; but the court may, in its discretion, for good cause, set aside a juror at any time before evidence is given in the action.

The administering of the oath to each juror as he is found competent is a lawful mode of swearing, and precludes a subsequent peremptory challenge to such juror. People v. Carpenter, 4 N. Y. Cr. Rep. 39; 38 Hun, 491.

After each juror has been separately sworn, the subsequent swearing of the jury as a body, at the request of defendant, does not vacate such oath previously administered to such juror, and defendant's absolute right to challenge peremptorily a juror previously sworn is not thereby revived. People v. Carpenter, 4 N. Y. Cr. Rep. 39; 38 Hun, 491.

A juror may be peremptorily challenged at any time before he is sworn, whether he has taken his seat in the jury box or not. People v. Carpenter, 3 N. Y. Cr. Rep. 92; 36 Hun, 317; 16 Abb. N. C. 130. In that case during the selection of the jury the trial judge stated that all challenges must be exhausted before the jurors took their seats in the box. Defendant's counsel then said