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SEC. 401. If new indictment not found, defendant to be tried on

the original indictment. 402. Court may discharge jury, where it has not jurisdiction

of the offense, or the facts do not constitute an

offense. 403. Proceedings, if jury discharged for want of jurisdic.

tion of the offense, when committed out of the state. 404-407. Proceedings in such case, when offense committed

in the state. 408, 409. Proceedings, if jury discharged because the facts

do not constitute an offense. 410. When evidence on either side is closed, court may ąd.

rise acquittal. Effect of the advice. 411. View of premises, when ordered, and how conducted. 412. Duty of officer as to jury. 413. Knowledge of juror, to be declared in court, and juror

to be sworn as witness. 414. Jurors may be permitted to separate during the trial.

If kept together, oath of the officers. 415. Jurors not io converse together on the subject of the

trial, nor form an opinion until the cause is sub.

mitted. 416. Proceedings, where juror becomes unable to perform

his duty before conclusion of trial. 417. Court to decide questions of law arising during trial. 418. On indictment for libel, jury to determine law and

fact. 419. In all other cases, court to decide questions of law,

subject to right of defendant to except. 420. Charge to jury: 421. Jury may decide in court, or retire in the custody of

officers ; oath of' the officers. 422. When defendant on bail appears for trial, he may be

committed.

$ 388. In what order trial to proceed.— The jury haying been impaneled and sworn, the trial must proceed in the following order:

1. The district attorney, or other counsel for the people, must open the case, and offer the evidence in support of the indictment;

2. The defendant or his counsel may then open his defense, and offer his evidence in support thereof;

3. The parties may then, respectively, offer rebutting testimony, but the court, for good reason, in furtherance of justice, may permit them to offer evidence upon their original case ;

4. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the defendant or his counsel must commence, and the counsel for the people conclude the argument to the jury ;

88 389–394. DEFENDANT'S RIGHTS ON TRIAL. 104

5. The court must then charge the jury.

Withdrawal of juror. Peo. v. Barrett, 2 Čai., 304 ; Grant v. Peo., 4 Park., 527. See McFall v. Peo., 18 Hun, 382 ; Babcock v. Peo., 15 Hun, 347 ; Peo, v. Lopez, 2 Édm. S. C., 262. Time al. lowed counsel discretionary. Peo. v. Kelly, 2 N. Y. Cr., 15. Charge. Peo. v. Petmecky, ib., 450.

§ 389. Defendant presumed innocent.—Reasonable doubt.--A defendant in a criminal action is presumed to be innocent, until the contrary be proved ; and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.

Applies to mental responsibility. O'Connell v. Peo., 87 N. Y., 377. When burden with prisoner. Bradford v. Peo., 20 Hun, 309. Extent of doubt. Toole v. l'eo , 80 N.Y., 615; Levy v. Peo., 80 ib., 327 ; Mayor v. Peo. ib., 364; Murphy v. Peo., 4 Hun, 102

§ 390. Reasonable doubt as to degrees. — When it appears, that a defendant has committed a crime, and there is reasonable ground of doubt, in which of two or more degrees he is guilty, he can be convicted of the lowest of those degrees only.

§ 391. Separate trials on joint indictment. When two or more defendants are jointly indicted for a felony, any defendant requiring it, must be tried separately. In other cases, defendants, jointly indicted, may be tried separately or jointly in the discretion of the court.

Where four are jointly indicted, three of them cannot insist upon the fourth being tried with them. Armsby v. Peo., 2 S. C., 157 : Kelley v Peo., 55 N. Y., 565. District attorney determines order of separate trials. Patterson v. Peo., 46 Barb., 625. May demand after jury empanelled. 15 Hun, 347. Witnesses against each other Peo. v. Satterlee, 5 Hun, 167 ; Taylor v. Peo., 12 id., 212; for each other, Peo. v. Dowling, 84 N. Y., 478.

§ 392. Rules of evidence.—The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code.

§ 393. Defendant as witness.—The defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him.

Cross-examination of defendant. Peo. v. Crapo, 76 N. Y., 288; Peo. v. Genet, 19 Ian, 91. See Stover v. Peo., 56 N. Y., 315; Newman v. Peo., 63 Barb., 630 ; Peo. v. Brandon, 42 N. Y. 265 ; Connors v. Peo., 50 N. Y., 240 ; Peo. v. Casey, 72 N. Y., 393 Peo. v. Joett, 23 Iun, 60; Peo. v. Greenfield, '23 Hun, 454 Maine v. Peo., 9 Ilun, 113 May testify as to intent. Kerrains v. Peo., 60 N. Y., 221. F:ilure to supply evidence. Brulo v. Peo., 16'Hun, 119; Peo v Hovey, 29 Hun, 382; 92 N. Y., 554.

§ 394. Compensation of witness.—The rules as to the compensation of witnesses attending trials in criminal cases, prescribed by special statutes, are continued as there defined.

§ 395. Confession of defendant. -A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a : tipulation of the district attorney, that he shall not be prosecuted therefor; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.

What additional proof necessary. Peo. v. Henessy, 15 Wend, 147 ; Peo. v Badgley, 16 ib., 53. Silence under accusation. Peo. v. Kelley, 55 N. Y., 565 ; Willett v. Peo., 27 Hun, 469 ; s. C., IN. Y. Cr., 355.

$ 396. Evidence on trial for treason.-Upon a trial for treason the defendant cannot be convicted, except upon the testimony of two witnesses to the same overt act, or of one witness to one overt act, and another witness to a different overt act of the same treason. But if two or more distinct treasons, of different kinds, be alleged in the indictment, two witnesses to prove different treasons are not sufficient to warrant a conviction.

$ 397. Id.-Upon a trial for treason, evidence cannot be admitted, of an overt act not expressly charged in the indictment; nor can the defendant be convicted, unless one or more overt acts be expressly alleged therein.

§ 398. Evidence on trial for conspiracy.-Upon a trial for a conspiracy, in a case where an overt act is necessary to constitute the crime, the defendant cannot be convicted, unless one or more overt acts be expressly allegeri in the indictment, nor unless one or more of the acts alleged be proved; but any other overt act, not alleged in the indictment, may be given in evidence.

1 N. Y. Cr. L., 337. § 399. Testimony of accomplice.-A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.

See Peo. v. Davis, 21 Wend., 309 ; Peo. v. Costello, 1 Den., 83 ; Lindsay v. Peo., 5 Hun, 104 ; 63 N. Y., 143; Peo. v. Courtney, Hun, 589; Peo. v. Williams, 29 Hun, 520 ; Peo. v. Ryland, 28 Hun, 568 ; Peo. v. Smith, ib., 626; Peó. v. Noelke, 29 Hun, 461. Peo. v. Hooghkirk, 2 N. Y. Cr., 204 ; Peo. v. Winshaw, ib., 395 ; Peo. v. Stone, ib., 243 ; Peo. v. Vedder, 98 N. Y.,-;in. Y. Cr. 123 ; aff'd 2 N. Y. Cr., 447.

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§ 400. Testimony showing higher offense. - If it appear by the testimony, that the facts proved constitute a crime of a higher nature than that charged in the indictment, the court may direct the jury to be discharged, and all proceedings on the indictment to be suspended, and may order the defendant to be committed, or continued on or admitted to bail, to answer any new indictment which may be found against him for the higher offense.

§ 401. If new indictment not found, to be tried on the original.-If an indictment for the higher crime be dismissed by the grand jury, or be not found at or before the next term, the court must again proceed to try the defendant on the original indictment.

§ 402. Want of jurisdiction.—The court may also direct the jury to be discharged, where it appears that it has not jurisdiction of the crime, or that the facts, as charged in the indictment, do not constitute a crime.

§ 403. Proceedings, on discharge when beyond state jurisdiction. If the jury be discharged, because the court has not jurisdiction of the crime charged in the indictment, and it appear that it was committed out of the jurisdiction of this state, the court may order the defendant to be discharged, or to be detained for a reasonable time specified in the order, until a communication can be sent by the district attorney to the chief executive officer of the state, territory or district where the crime was committed.

$ 404. Proceedings when offense committed in the state. — If the crime were committed within the exclusive jurisdiction of another county of this state, the court must direct the defendant to be committed for such time as it deems reasonable, to await a warrant from the proper county for his arrest; or if the crime be a misdemeanor only, it may admit him to bail, in an undertaking, with sufficient sureties, that he will, within such time as the court may appoint, appear in such court to await a warrant from the proper county for his arrest.

$ 405. Id.-In the case provided for in the last section, the clerk must forthwith give notice to the district attorney of the proper county, that the defendant has been so committed or held to bail.

§ 406. Id.-If the defendant be not arrested, as provided in section 404, on a warrant from the proper county, he must be discharged from custody, or his bail in the action be exonerated, or money deposited instead of bail refunded, as the case may be ; and the sureties in the undertaking mentioned in that section must be discharged.

§ 407. Id.-If the defendant be arrested, the same proceedings must be had thereupon, as upon the arrest of a defendant in another county, on a warrant of arrest issued by a magistrate.

$ 408. Proceedings, on discharge because facts constitute no offense. — If the jury be discharged, because the facts as charged do not constitute a crime, the court must order the defendant, if in custody, to be discharged therefrom, or if admitted to bail, that his bail be exonerated, or if he have deposited money instead of bail, that the money deposited be refunded to him, unless in its opinion a new indictment can be framed, upon which the defendant can be legally convicted; in which case, it may direct that the case be re-submitted to the same or another grand jury.

Case v. Peo., 76 N. Y ,242.

$ 409. Id.-If the court direct that the case be submitted anew, the same proceedings must be had thereon as are prescribed in sections 318 and 319.

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