The court should in a proper case direct an acquittal. Howell v. People, 5 Hun, 621; 69 N. Y. 607; People v. Bennett, 49 id. 137; Duffy v. People, 26 id. 588; Babcock v. People, 15 Hun, 347; Sullivan v. People, 27 id. 37; People v. Livingston, id. 107; People v. Dohring, 59 N. Y. 381.

In People v. Adams, 16 Hun, 549, defendant plead not guilty, and after trial, his counsel moved the court to direct the jury to acquit defendant; the motion was denied, and a motion to discharge was granted. Held error. The case should have been submitted to the jury.

The court has no power to direct a verdict of guilty. Hun, 620; 69 N. Y. 607; Case v. People, 6 Abb. N. C. 151. 33; 1 Greenl. Ev., § 49, note.

Howell v. People, 5

See 10 Alb. L. J.

It is error for the court to charge the jury to find a verdict of guilty even in a case where the question of guilt or innocence depends wholly upon a question of law. United States v. Taylor, 3 Crim. L. Mag. 552, 555.

§ 411. View of premises, when ordered, and how conducted. When, in the opinion of the court, it is proper that the jury should view the place in which the crime is charged to have been committed, or in which any material fact occurred, it may order the jury to be conducted, in a body, under charge of proper officers, to the place, which must be shown to them by a judge of the court, or by a person appointed by the court for that purpose.

See Abbott's Trial Brief, 72-4; 26 Cent. L. J. 436; People v. Johnson, 110 N. Y. 143; 46 Hun, 673; People v. Buddensieck, 103 N. Y. 501; People v. Oyer and Terminer, 3 N. Y. Cr. Rep. 215; 36 Hun, 279; People v. Tyrrell, 3 N. Y. Cr. Rep. 142; People v. Palmer, 43 Hun, 407; 5 N. Y. Cr. Rep. 106, disapproving Shular v. State, 105 Ind. 289; 55 Am. Rep. 211.

§ 412. Duty of officer as to jury. The officers, mentioned in the last section, must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time.

See People v. Johnson, 110 N. Y. 143; 46 Hun, 672; People v. Palmer, 43 Hun, 401; 5 N. Y. Cr. Rep. 106.

§ 413. Knowledge of juror, to be declared in court, and juror to be sworn as witness. If a juror have any personal knowledge, respecting a fact in controversy in a cause, he must declare it in open court, during the trial. If, during the retirement of the jury, a juror declare a fact, which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement

must be sworn as a witness, and examined in the presence of the parties.

§ 414. Jurors may be permitted to separate during the trial; if kept together, oath of the officers. The jurors sworn to try an indictment may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or be kept in charge of proper officers. Such officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to or communicate with them, nor to do so themselves, on any subject connected with the trial, and to return them into court at the next meeting thereof.

See 1 Bish. Crim. Proc., §§ 994, 995; Rapalje's Crim. Pro., § 496; Stephens v. People, 19 N. Y. 549, 554; People v. Reagle, 60 Barb. 527; People v. Frost, 5 Park. 53; People v. Montgomery, 13 Abb. Pr. (N. S.) 208; People v. Douglass, 4 Cow. 26; Kelly v. State, 12 Cr. L Mag. 231,

Even in a capital case, if the court permits the jury to separate before submission and the defendant does not object until after verdict, the objection is waived. Henning v. State, 106 Ind. 386; 55 Am. Rep. 756.

On a murder trial after the case was submitted to the jury, members of the jury were permitted to go to a privy seventy-five yards distant, unattended by an officer. It was not shown that any one did or could communicate with them. Held, no error. State v. State, 64 Miss. 644; 60 Am. Rep. 70.

During the trial of a capital felony the jury were lodged every night in a hotel. On the third night the hotel was destroyed by fire. The jury escaping became separated for an hour or more, some of them mingling with the crowd about the fire, others going home. On an examination by the court every juror swore that during the separation no one had spoken to him or in his presence on the subject of the trial. The prisoner did not object to the continuing of the trial, but refused to assent, or waive any right or advantage resulting to him from the separation. Conviction being had, held, that the prisoner was entitled to a new trial. Early v. State, 1 Tex. Ct. App. 248; 28 Am. Rep. 409.

§ 415. Jurors not to converse together on the subject of the trial, nor form an opinion until the cause is submitted. The jury must also, at each adjournment of the court, whether permitted to separate or kept in charge of officers, be admonished by the court, that it is their duty not to converse among themselves on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them.

See People, ex rel., v. Oyer and Terminer, 3 N. Y. Cr. Rep. 211; 36 Hun, 279. Unless it is shown that the prisoner has been prejudiced thereby, a judge's

omission to admonish the jury on adjournment of court is not ground for a new trial. People v. Draper, 28 Hun, 1; 1 N. Y. Cr. Rep. 138.

A claim that the trial court omitted to admonish the jurors as required cannot be considered on appeal where there is no part of the record showing distinctly that this was not done, and no question appears to have been raised or exception taken in regard to the matter. People v. Rugg, 3 N. Y. Cr. Rep.

172.

Where the case on appeal does not disclose any failure on the part of the trial judge to admonish the jury at each adjournment, such failure will not be presumed. People v. Reavey, 4 N. Y. Cr. Rep. 2; 38 Hun, 418.

416. Proceedings, where juror becomes unable to perform his duty before conclusion of trial. If, before the conclusion of the trial, a juror become sick, so as to be unable to perform his duty, the court may order him to be discharged, and another jury to be then or afterward impanneled.

See Cooley Const. Lim. 327-8; 1 Bish. Crim. Law, § 869.

After the retirement of the jury on a murder trial, one of them was taken very ill; he was put in bed in a communicating room, a physician was summoned who attended him, there, not speaking to the others at all, nor to him on the subject of the trial. It appearing that the prisoner sustained no injury, held, that a verdict of guilty was not vitiated. Goersen v. Com., 106 Penn. St. 477; 51 Am. Rep. 534.

$ 417. Court to decide questions of law arising during trial. The court must decide all questions of law which arise in the course of the trial.

See Thomp. Trials, § 1015–1031; Rapalje's Crim. Proc., § 345; People v. Rego, 3 N. Y. Cr. Rep. 277; 36 Hun, 131.

In People v. O'Neil, 49 Hun, 422, the court say: A judgment will not be reversed merely because the judge submitted to the jury a question which he ought to determine himself, where it is clear that he ought to have decided it in the same way the jury have found. Miller v. Ins. Co., 2 E. D. Smith, 268; Cumpston v. Me Nair, 1 Wend. 457; Pangburn v. Ball, id. 345–352; Hall v. Suydam, 6 Barb. 83, 88; Thompson v. Roberts, 24 How. (U. S.) 233–240.”

8418. On indictment for libel, jury to determine law and fact. On the trial of an indictment for libel, the jury have the right to determine the law and the fact.

The State Constitution, art. I, § 8, provides as follows: "In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact." See People v. Croswell, 3 Johns. Cas. 337; State v. Syphrett, 27 So. Car. 29; 13 Am. St. Rep. 616, 625, note.

8 419. In all other cases, court to decide questions of law, subject to right of defendant to except. — On the trial of an indictment for any other crime than libel, questions of law are to be decided by the court, saving the right of the defendant to except; questions of fact, by the jury. And although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court.

See 1 Greenl. Ev., § 49; 20 Am. Dec. 133, note; 9 Crim. Law Mag. 627-632; 3 id. 484; Thomp. Trials, § 2140; People v. Croswell, 3 Johns. Cas. 337.

The jury in criminal cases are bound by the instructions of the court as to the law, to the same extent as in civil cases. Duffy v. People, 26 N. Y. 589; Bk. VI (Reprint ed.), 187; People v. Upton, 38 Hun, 109; McKenna v. People, 81 N. Y. 360; People v. Howell, 5 Hun, 820; 69 N. Y. 607; People v. Pine, 2 Barb. 566; Allis v. Leonard, 58 N. Y. 291; People v. Finnegan, 1 Park. 147. But see People v. Thayer, 1 Park. 596. Contra, Kane v. Com., 89 Penn. St. 522; 33 Am. Rep. 787; 1 Crim. Law Mag. 47, 51, note; Hudelson v. State, 94 Ind. 426; 48 Am. Rep. 171.

§ 420. Charge to jury. In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict; and must, if requested, in addition to what it may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact.

A new trial will not be granted because the judge, though requested, declined to charge the jury, there being no question of law in the case. People v. Gray, 5 Wend, 289.

Comments by the trial judge on the testimony, so long as the judge leaves all the questions of fact to the jury and instructs them that they are the sole judges of matters of fact, are not the subject of legal exception. People v. Carpenter, 4 N. Y. Cr. Rep. 39; affirmed, id. 177; Winne v. McDonald, 39 N. Y. 239; Hart v. Ryan, 6 N. Y. Supp. 924; People v. O'Neil, 112 N. Y. 363364; Allis v. Leonard, 58 id. 291; People v. McInerney, 5 N. Y. Cr. Rep. 47.

A statement of the court that the evidence is convincing enough to warrant the direction of a verdict if it was a civil case is not error where the question of defendant's guilt is left to the jury. United States v. Curtis, 11 Abb. N C. 1.

A charge of the court which brings to the attention of the jury evidence relevant to a material fact in the case, and stating that if such evidence be true it tends to prove such fact, etc., and in no way controlling or directing the jury as to the force and effect of such evidence, is not error. People v. Wiggins, 1 N. Y. Cr. Rep. 290.

Where the courts properly submits to the jury a proposition covering the whole issue, and instructs them that they must find it beyond a reasonable doubt, he cannot be required to sub-divide it, and charge separately as to each

of the elements necessary to constitute the crime, that it must be established beyond a reasonable doubt. Walker v. People, 1 N. Y. Cr. Rep. 22; 8 N. Y. 86.

Where the court, upon the failure of a jury to agree, addresses to them remarks claimed to be improper, a general exception presents no question for review, unless it appears that no portion of such remarks was proper. Berry v. People, 1 N. Y. Cr. Rep. 43.

Where the judge charges that the crime charged in the indictment is a misdemeanor instead of a felony, and no exception was taken, held, no injury to accused. People v. Bragle, 88 N. Y. 585; 63 How. Pr. 143.

Where the court charged that the prisoner is presumed to be a sane man until he convinces you that he is insane, held, not error. O'Connell v. People, 87 N. Y. 377; 62 How. Pr. 436.

§ 421. Jury may decide in court, or retire in the custody of officers; oath of the officers. After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn, to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.

See People, ex rel. Choate, v. Barrett, 56 Hun, 351; 24 Abb. N. C. 432.

$422. When defendant on bail appears for trial, he may be committed.-When a defendant, who has given bail, appears for trial, the court may, in its discretion, at any time after his appearance for trial, order him to be committed to the custody of the proper officer of the county, to abide the judgment or further order of the court; and he must be committed and held in custody accordingly.

CHAPTER II.

CONDUCT OF THE JURY AFTER THE CAUSE IS SUBMITTED TO THEM.

SECTION 423. Room and accommodations for the jury after retirement, how

provided.

124. Accommodations for the jury, when kept together during the

trial, or after retirement.

425, 426. What papers the jury may take with them.