to perform it; and the expenses incurred by him in carrying the order into effect, when certified by the court, are a county charge. (§ 423.)

Accommodations for the jury, when kept together during the trial, or after retirement.]-While the jury are kept together, either during the progress of the trial or after their retirement for deliberation, they must be provided by the sheriff, upon the order of the court, at the expense of the county (or if the trial be in a city court, at the expense of the city), with suitable and sufficient food and lodging. (§ 424.)

What papers the jury may take with them.]-The court may permit the jury, upon retiring for deliberation, to take with them. any paper or article which has been received as evidence in the cause, but only upon the consent of the defendant and the counsel for the people. (§ 425.)

The jury may also take with them notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person. (§ 426.)

Jury can not use notes of presiding judge. Mitchell v. Carter, 14 Hun, 448. May return into court, for information.]—After the jury have retired for deliberation, if there be a disagreement between them, as to any part of the testimony, or if they desire to be informed of a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given after notice to the district attorney and to the counsel for the defendant, and in cases of felony, in the presence of the defendant. (§ 427.)

Instructions to jury can only be given when defendant present. Maurer v. Peo., 43 N. Y., 1. Communications can not be sent to jury after retiring even by consent. They must be brought into court. Plunkett v. Appleton, 51 How. Pr., 469. Magistrate can not send answer to communication from jury. Plunkett v. Appleton, 9 J. & Sp., 159; Gillotte v, Jackson, ib., 308. See also Mahony v. Decker, 18 Hun, 365.

Discharge of jury before agreement.]-After the jury have retired to consider of their verdict, they can be discharged before they shall have agreed thereon only in the following cases:

1. Upon the occurrence of some injury or casulty affecting the defendant, the jury or some of them, or the court, rendering it inexpedient to keep them longer together; or

2. When after the lapse of such time as shall seem reasonable to the court, they shall declare themselves unable to agree upon a verdict; or 3. When with the leave of the court, the public prosecutor and the counsel for the defendant consent to such discharge. (§ 428.)

It is error for the court to constrain jury by saying they must agree or no discharge. Slater v. Mead, 53 How. Pr., 57.

Reason for discharge.]-Whenever the jury is discharged without a verdict, the reason for the discharge must be entered on the minutes. (§ 429.)

When cause may be again tried.]-In all cases where a jury are discharged, or prevented from giving a verdict, by reason of an accident

*CHAPTER X.

[* 365 ]

VERDICT AND JUDGMENT.

1. Verdict.

THE verdict in all cases of felony and treason, must be delivered in open court in the presence of the defendant. (a) But in all trials for inferior misdemeanors, or where no corporal punishment is to be inflicted, a privy verdict may be given, and there is no occasion for the presence of the defendant. (b) And it seems, that in England, by consent of parties, it may be delivered at the house of the judge,

(a) 1 Chit. Cr. L., 636. 1 Wend., 91. 1 T. R., (b) Id., ib.

434.

or other cause, except where the defendant is discharged from the indictment, during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term. (§ 430.)

Temporary adjournment.]-While the jury are absent, the court may adjourn from time to time, as to other business; but it is nevertheless deemed open, for other purpose connected with the cause submitted to the jury, until a verdict is rendered or the jury discharged. (§ 431.)

Final adjournment.]-A final adjournment of the court discharges the jury, but any term of a court may be continued for the purpose of continuing a trial or receiving a verdict. (§ 432.)

When the jury have agreed, to be brought into court and their names called: If all do not appear,jury to be discharged and cause again tried.]-When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that event, the cause may be again tried, at the same or another term. (§ 433.)

It has been held that it is not error, in a capital case, for the judge, with the assent of the prisoner, to permit the jury to separate, from time to time, before the delivery of his charge. (Stephens v. People, 19 N. Y., 549; S. C., 4 Park., 396.)

Irregularities in reference to the working of the machinery provided by statute, for procuring jurors, offer no ground for reversing a conviction, unless it appears that the defendant was in fact injured or prejudiced thereby. (Cox v. People, 19 Hun, 430.)

even where it is situated beyond the limits of the county in which the trial was had. (c) But no such rule exists in this state. (1)

Verdicts are either, general, as to the whole charge-partial, as to part of it-or special, where the facts of the case alone are found, and the legal inference is referred to the judges. (d) (2)

(c) 5 Burr., 2637.

(d) 4 Black. Com., 361.

(1) Return of jury into court; part not appearing.]-When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge.. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that event, the cause may be again tried, at the same or another term. (Code Cr. Pro., § 433.)

In felony, defendant must be present. In misdemeanor, verdict may be rendered in his absence.]—If the indictment be for a felony, the defendant must, before the verdict is received, appear in person. If it be for a misdemeanor, the verdict may be rendered in hist absence. (Id., § 434.)

Manner of taking the verdict.]-If the jury appear, they must be asked by the court or the clerk, whether they have agreed upon their verdict; and if the foreman answer in the affirmative, they must, on being required, declare the same. (Id., § 435.)

(2) By the Code of Criminal Procedure, "The jury may either render a general verdict, or when they are in doubt as to the legal effect of the facts proved, they may, except upon an indictment for libel, find a special verdict." (§ 436.)

Under general verdict of guilty, sentence for the highest offense charged in indictment is proper. Hawker v. Peo., 75 N. Y., 487.

General verdict.]-A general verdict upon a plea of not guilty is either "guilty" or "not guilty;" which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or acquittal of the same offense, it is either "for the people" or "for the defendant." (§ 437.)

Special verdict.]-A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact, as established by the evidence, and not the evidence to prove them; and these conclusions of fact must be so presented, as that nothing remains to the court, but to draw from them conclusions of law. (§ 438.)

Miller v. Peo., 25 Hun, 473.

The special verdict must be reduced to writing, by the jury or in their presence, entered upon the minutes of the court, read to the jury, and agreed to by them, before they are discharged. (§ 439.)

The special verdict need not be in any particular form, but is sufficient, if it present intelligibly the facts found by the jury. (§ 440.)

No jury can be compelled to give a general verdict, so that they find a special verdict showing the facts respecting which issue is joined, and therein require the judgment of the court upon such facts. (e)

A good finding on a bad count, and a bad finding on a good count, stand on the same footing; both being nullities. (ƒ)

A general verdict of guilty is valid, if one count of the indictment is good, although the others are defective. (g) (3)

The jury may acquit the defendant of a part and find him guilty as to the residue. Thus, they may convict him upon one count of the indictment and acquit him of the charge contained in another; or upon one part of a count capable of division, and not guilty of the other part, as on a count for composing and publishing a libel, the

(e) 1 Chit. Cr. L., 637.

(ƒ) O'Connell v. The Queen, 11 Clark & Fin., 155. 9 Jur., 25.

(g) 1John.,320. 1 Chit. Cr. L., 640. 1 Blackf., 319. 1 Stew., 231. 7 Ham. R., 240. Breese, 197. 8 Greení., 113. 3 Hill, 194.

The special verdict may be brought to argument by either party, upon five days' notice to the other, at the same or another term of the court; and upon the hearing thereof, the counsel for the defendant may conclude the argument. (§ 441.)

Judgment thereon.]-The court must give judgment upon the special verdict, as follows:

1. If the plea be not guilty, and the facts prove the defendant guilty of the offense charged in the indictment, or of any other offense of which he could be convicted, under that indictment, as provided in sections 444 and 445, judgment must be given accordingly; but if otherwise, judgment of acquittal must be given;

2. If the plea be a former conviction or acquittal of the same offense, the court must give judgment of conviction or acquittal, according as the facts prove or fail to prove the former conviction or acquittal. (§ 442.)

When special verdict defective, new trial to be ordered.]— If the jury do not, in a special verdict, pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact from the evidence, as established to their satisfaction, the court must order a new trial. (§ 443.)

(3) A general verdict of guilty will be sustained, although there be a defective count in the indictment, if there is also a good count to which the evidence is applicable. (Crichton v. People, 6 Park., 363; Pontius v. People, 82 N. Y., 339; Hope v. People, 83 id., 418.) Whatever is alleged in a count which is not necessary to constitute the offense, may be rejected as surplusage. (Id.) An averment, in an indictment, descriptive of the offense charged, if made under a videlicet, can not be rejected as surplusage. (Id.)

Where, under proper instructions, a general verdict of guilty under the whole indictment is rendered, a sentence for the highest offense charged is proper. (Hawker v. People, 75 N. Y., 487.)

defendant may be found guilty of publishing only. () But if, upon an indictment containing two distinct charges of different offenses, punishable differently, a general verdict of guilty is rendered, a new trial will be granted. (i) (4) Yet in general, where from the evidence, it appears that the defendant has not been guilty to the [*366] extent of the charge specified, he may be found * guilty as far as the evidence warrants, and be acquitted as to the residue; as where he is charged with engrossing one thousand quarters of wheat, and the evidence amounts to but seven hundred. () And where the accusation includes an offense of inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the less atrocious. Thus, upon an indictment for burglariously stealing, the prisoner may be convicted of the theft, and acquitted of the nocturnal entry; upon an indictment for murder he may be convicted of manslaughter; on an indictment for stealing privately from a person, he may be found guilty of larceny only; on an indictment for grand, the offense may be reduced to petit larceny; robbery may be softened into felonious theft; and on an indictment founded on a statute, the defendant may be found guilty at common law. (1) So, under the Revised Statutes, on an indictment for an offense consisting of different degrees, the jury may find the accused not guilty of the offense in the degree charged in the indictment, and guilty of such offense in any inferior degree, or of an attempt to commit such offense. (m) (5) This provision of the statute has not

(h) 1 Chit. Cr. L., 637.

(i) 2 McCord, 257.

(k) 1 Chit. Cr. L., 637. 2 Camp., 583.

(7) 1 Chit. Cr. L., 638, 9.

(m) 2 R. S., 702, § 27; 3 id., 7th ed., 2539; 22 N. Y., 180; 40 id., 354; 47 Barb., 127; 56 id., 131.

(4) Where a verdict of conviction was found on the second count only, leaving the fifth, third and fourth undisposed of, the judgment was reversed. (People v. Parshall, 6 Park., 129.)

An indictment contained counts for burglary, for larceny, and for receiving stolen property, knowing it to have been stolen. On a general verdict of guilty, held, that the defendant was properly sentenced for the highest crime charged in the indictment. (People v. McGary, 6 Park., 633.)

(5) On the trial of an indictment for murder, the jury may convict of any degree of the offense inferior to that charged. It is error to restrict them as to the grade of the offense. (McNevins v. People, 61 Barb., 307; Gardiner v. People, 6 Park., 155.)

By the Code of Criminal Procedure—

Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime. (§ 444.)

See Penal Code, § 35.