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§ 368. Determination of challenge. - If, either upon an exception to the challenge, or å 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 impaneled.

369. Defendant to be informed of his right to challenge. — 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


§ 370. Challenges to 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.

§ 371. Challenge when taken. - A challenge must be taken 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.

See Peo. v. Damon, 13 Wend., 351,

§ 372. Peremptory challenge. – A peremptory challenge is an objection to a juror, for which no reason need be given, but upon which the court must exclude him.

Friery v. Peo., 2 Keyes, 424.

§ 373. Id.; number of. — Peremptory challenges must be taken in number as follows:

1. If the crime charged be punishable with death, thirty;

2. If punishable with imprisonment for life, or for a term of ten years or more, twenty ;

3. In all other cases, five.

§ 374. Challenge for cause. - A challenge for cause is an objection to a particular jurer, and is either,

1. General, that the juror is disqualitied from serving in any case; or

2. Particular, that he is disqualified from serving in the case on trial.

§ 375. General causes of challenge. - General causes of challenge are,

1. A conviction for a felony;

2. A want of any of the qualifications prescribed by the Code of Civil Procedure, to render a person a competent juror.

Sub. 2. General provisions, qualifications of trial juror. Code of Civ. Proc., $$ 1027, 1028. Disqualification of public oflicers. Ib , $ 1029. Qualifications in Kings county. Ib., 99 1029, 1126. Qualifications in city and county of New York. Ib., $$ 1029, 1079.

§ 376. Particular causes of challenge. Particular causes of challenge are of two kinds :

1. For such a bias, as, when the existence of the facts is ascertained, does in judgment of law disqualify the juror, and which is known in this Code as implied bias;

2. For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that such juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this Code as actual bias. But the previous expression or formation of an opinion or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sufficient ground of challenge for actual bias, to any person otherwise legally qualified, if he declare on oath, that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied, that he does not entertain such a present opinion or impression as would influence his verdict.

Sub. 2. See Thomas v. Peo., 67 N. Y., 218; Peo. v. Mullin, 3 Alb. L. J., 150; Greenfield v. Peo., 74' N. Y., 277 ; Phelps v. Peo., 6 Hun, 401 ; 72 N. Y., 334 ; Manke v. Peo., 17 Hun, 410 ; Balbo v. Peo., 80 N. Y.,

484 ; Cox v. Peo., ib., 500 ; Abbott v. Peo. 86 N. Y., 460, Peo. v. Cornette, 16 W. D., 442 ; Peo. v. Welch, N. Y. C. R., 487 ; Peo. v. Casey, 2 N. Y. Cr. L.,.194.

§ 377. Challenge for implied bias. - A challenge for implied bias may be taken for all or any of the following causes, and for no other :

1. Consanguinity or affinity within the ninth degree, to the person alleged to be injured by the crime charged, or on whose complaint the prosecution was instituted, or to the defendant;

2. Bearing to him the relation of guardian or ward, attorney or client, or client of the attorney or counsel for the people or defendant, master or servant, or landlord or tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages ;

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.

Sub. 1. See Cole v. Van Keuren, 51 How. Pr., 451. Sub. 8. See Peo. v. Damon, 13 Wend., 351.

§ 378. 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.

$ 379. Exemption. -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. Proc., 1030, 1031. Id. in Kings county. Ib., ss 11:27, 1128. Id. in city and county of New York. Ib., sø 1031, 1032. See Peo. v. Morissey, 1 Sheld., 295.

$ 380. Statement of challenge. - 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. Peo., 4 Den., 131.

Ø 381. Exceptions to challenge. — 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 facts alleged as the ground of challenge.

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

•$ 383. Juror challenged may be examined. — 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.

§ 384. Rules of evidence.- 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.

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

§ 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.

387. Jury to be sworn, etc.—The first twelve per sons 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. Peo. ex rel. Flaherty v. Ncilson, 22 IIun, 1.


Of the trial. CHAPTER I. The trial.

II. Conduct of the jury, after the cause is submitted to

III. The verdict.



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 convicted 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 cannot be had on testimony of accomplice,

unless corroborated 400. If testimony show higher crime than that charged:

court may discharge jury, and hold defendant to answer a new indictment.

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