SEC. 348. Decision on application for stay, to be indorsed on papers and filed. 349. If application for stay be denied, no other application can be made. 350. Violation of last section, a misdemeanor and contempt, and order of removal to be vacated. 351. Order of removal to be filed, and pleadings and proceedings to be transmitted. 352. Proceedings on removal, if defendant be in custody. 353. Order for removal must be filed, before a juror is sworn. Authority of the court to which indictment is removed. § 343. Existing writs and proceedings, to remove indictment before trial abolished. -All writs and other proceedings heretofore existing, for the removal, upon the application of the defendant, of criminal actions prosecuted by indictment, from one court to another before trial, are abolished. § 344. When and in what cases, indictment may be removed before trial.—A criminal action, prosecuted by indictment, may, at any time before trial, on the application of the defendant, be removed from the court in which it is pending, as provided in this chapter, in the following cases: 1. From a court of sessions or a city court, to the court of oyer and terminer of the same county, for good cause shown; 2. From a court of oyer and terminer or sessions, or a city court, to the court of oyer and terminer of another county, on the ground that a fair and impartial trial cannot be had in the county or city where the indictment is pending. Peo. v. Sessions, 62 How. P. R., 415; Thompson v. Peo., 6 Hun, 135; Dolan v. Peo. ib., 493; s. c., 64 N. Y., 485. §345. If former trial, how removed.-If one or more trials be had, and a new trial is necessary, either by reason of the discharge of a jury without a verdict, or of the granting of a new trial, the removal may be allowed at any time before the new trial. § 346. Application for removal-The application for the order of removal must be made to the supreme court, at a special term in the district, upon notice of at least ten days to the district attorney of the county where the indictment is pending, with a copy of the affidavits or other papers on which the application is founded. What affidavits must contain. Peo. v. Bodine, 7 Hill, 147; Peo. v. L. I. R. R. Co., 4 Park., 602; Peo. v. Harris, 4 Den., 150; Peo. v. Baker, 3 Park., 181; Peo. v. Sammis, 3 Hun, 560. § 347. Stay, how obtained, to apply for removal.— To enable the defendant to make the application, a judge of the supreme court may, in his discretion, upon good cause shown by affidavit, make an order staying the trial of the indictment, until the application can be made and decided. § 348. Decision on application for stay.—When an application for an order to stay the trial is made to the supreme court, it must indorse its decision on the affidavits or other papers presented, and cause them to be immediately filed with the clerk of the court, in which the indictment is pending. § 349. But one application can be made.—If the application for an order to stay the trial has been made before one judge and denied, a similar application cannot be made to another judge. § 350. Violation of last section.-A violation of the last section is punishable not only as a misdemeanor, but as a contempt of the court in which the indictment is pending; and that court must vacate an order of removal made in violation thereof. § 351. Proceedings on order of removal.-If the supreme court order the removal of the action, a certified copy of the order for that purpose must be delivered to and filed with the clerk of the court where the indictment is pending; who must thereupon transmit the same with the pleadings and proceedings in the action, including all undertakings for the appearance of the defendant or of the witnesses, or a certified copy of the same, to the court, to which the action is removed. § 352. Id.; if defendant be in custody.—If the defendant be in custody, and the removal be to the court of oyer and terminer of another county, than that where the indictment is pending, the order must provide for the removal of the defendant, by the sheriff of the county where he is imprisoned, to the custody of the proper officer of the county to which the action is removed; and he must be forthwith removed accordingly. § 353. When order for removal must be filed.-An order for the removal of the action is of no effect, unless a certified copy thereof be filed, as required by section 351, before a juror is sworn to try the indictment. When thus filed, the court to which the action is removed, must proceed to trial and judgment therein. Loomis v. Peo., 19 Hun, 601. TITLE VI. Of the Proceedings on the Indictment, before Trial. II. Formation of the trial jury. CHAPTER I. THE MODE OF TRIAL. SEC. 351. Issue of fact, defined. 355. How tried. 356. Appearance. 357. Preparation for trial. § 354. Issue of fact, defined.—An issue of fact arises, 1. Upon a plea of not guilty; or 2. Upon a plea of a former conviction or acquittal of the same crime. § 355. How Tried.-An issue of fact must be tried by a jury of the county in which the indictment was found, unless the action be removed, by order of the supreme court, into the court of oyer and terminer of another county, as provided in the second subdivision of section 344. § 356. Appearance.-If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant, if he appear by counsel; but if the indictment be for a felony, the defendant must be personally present. Presence in connecting room. Peo. v. Bragle, 88 N. Y., 585; s. c., 26 Hun, 378. § 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. Postponement on account of absent witnesses. People v. Vermilyea, 7 Cow., 369. Affidavits therefor, what to contain. Broad's Case, 3 C. H. Rec., 7; Peo. v. Wilson, 3 Park. 199; Peo. v. Horton, 4 ib., 222. No exception lies to refusal to postpone trial for witnesses. Eighmy v. Peo., 79 N. Y., 546. CHAPTER II. FORMATION OF THE TRIAL JURY. SEC. 358. Jurors in criminal courts. § 358. Jurors in criminal courts.-The trial jury is formed, as prescribed by the Code of Civil Procedure. Qualifications of trial jurors. Code of civil procedure, §§ 10271062 inclusive. Formation of the jury, Ib., §§ 1163-1180; ib., §§ 1190, 3350, 3351. Alien not entitled to special jury. Ib., § 1190. Trial jurors in Kings county. lb., §§ 1029, 1126-1162, 1174, 1191. Trial jurors in city and county of New York. Ib., §§ 1029, 10791125, 1174, 1191. Legislature may regulate manner of procuring jury. Stokes v. Peo., 53 N. Y., 164; Gardner v. Peo., 6 Park., 155. Mere irregularities in drawing jury, not prejudicial, no ground of error. Cox v. Peo., 80 N. Y., 500; Peo. v. Petrea, 30 Hun, 98; s. c., 92 N. Y., 128. CHAPTER III. CHALLENGING THE JURY. SEC. 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. SEC. 365. If exception overruled, court may allow denial of challenge. If allowed, may permit challenge to be amended. 366. Denial of challenge, how made, and trial thereof. 369. Defendant to be informed of his right to challenge an 370. Kinds of challenge to individual juror. 371. Challenge, when taken. 372. Peremptory challenge. 373. Number of peremptory challenges. 374. Definition and kinds of challenge for cause. 375 General causes of challenge. 376. Particular causes of challenge. 377. Grounds of challenge for implied 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. § 360. Challenges on joínt trials.—When several defendants are tried together they cannot sever their challenges, but must join therein. § 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 additional panel ordered to complete the jury. Prisoner can waive challenge to the array after it is allowed. Pierson v. Peo., 79 N. Y., 424. § 362. Upon what founded. — A challenge to the panel can be founded only on a material departure, to |