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§ 410. Court may advise acquittal-If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant and they must follow the advice. See Babcock v. Peo.,

15 Hun 347 ; Case v. Peo., 6 Abb. N. C., 151 ; Howell v. Peo., 5 Hun., 620 ; 69 N. Y., 607.

§ 411. View of premises.- 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

§ 412. Duty of officer.-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.

§ 413. Knowledge of juror.-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 separate.-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 meet

ing 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.

§ 415. Conduct of jurors during trial. — 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 duly 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.

§ 416. Where juror becomes sick. If, before the conclusion of the trial, a juror becomes sick, so as to be unable to perform his duty, the court may order bim to be discharged, and another jury to be then or afterward impaneled.

Tiral must be had by twelve jurors and defendant cannot waive right. Cancemi v. Peo., 18 N. Y., 128. Sleepy juror. Peo. v. Morissey, 1 Sheld., 295. Exempt juror. Ib.

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

It is error to submit a question of law to the jury. Glaucus v. Black, 67 N. Y., 563.

§ 418. Indictment for libel. — On the trial of an indictment for libel, the jury have the right to determine the law and the fact.

Art. 1, § 8, N. Y. Const.

*$ 419. In all other cases, court decides questions of law. – 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 Peo. v. Pine, 2 Barb., 566.

♡ 420. Charge to jury. - In charging the jury, the court must state to them, all matters of law which it thinks necesssay 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.

See Peo. v Moet, 23 Hun, 60. Court may limit argument. Peo. v. Kelley, 2 Ñ Y. Cr. L., 15. Cannot direct verdict of guilty. Howell v. Peo., 5 Hun, 620; s. C., 69 N. Y , 607. Jury may inquire as to punishment. Peo. v. Cassiano, 30 Hun, 388. Error how cured. Peo. v. Greenfield, 23 Hun, 454 ; s. C., 85 N. Y., 75.

§ 421. Deliberation of jury. — 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.

When jury separate without authority, may be discharged and new trial had. Peo. v. Reagle, 60 Barb., 527.

§ 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.




SEC. 423. Room and accommodations for the jury after retire. § 423. Accommodations for the jury. - A room must be provided by the supervisors of the county (or if the trial be in a city court, by the corporate authorities of the city), for the use of the jury, upon their retirement for deliberation, with suitable furniture, fuel, lights and stationery. If the supervisors or corporate authorities neglect this duty, the court may order the sheriff to perform it; and the expenses incurred by him in carrying the order into effect, when certified by the court, are a county charge.

ment, how provided. 424. Accommodations for the jury, when kept together

during the trial, or after retirement. 425, 426. What papers the jury may take with them. 427. May return into court, for information. 428. When jury to be discharged before agreement. 429. Reason for discharge. 430. When jury discharged or prevented from giving a

verdict, cause to be again tried. 431. Court may adjourn during absence of jury, as to other

business, hut deemed open till verdict rendered or

jury discharged. 432. Final adjournment of court discharges jury.

Reading report of trial. Peo. v. Gaffney, 1 Sheld 304. Presence of officers in jury room. Peo. v. Draper, 23 Iun, 1; not ground for new trial.

$ 424. Food and lodging for the jury. 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.'

§ 425. 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.

§ 426. Id.--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.

Cannot use notes of presiding judge. Mitchell v. Carter, 14 Hun, 418.

§ 427. Jury may return 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.

Instructions to jury can only be given when defendant present. Maurer v. Peo., 43 N. Y., 1. Communications cannot be sent lo 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 Mahoney v. Decker, 18 Hun, 305 ; Peo. v. Cassiano, 30 Hun, 388; Peo. v. Kelly, 2 N. Y. C. R., 15; 17 W. Dig., 499.

$ 428. When jury to be discharged 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 casualty affecting the defendant, the jury or some one 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.

It is error for the court to constrain jury by saying they must agree or no discharge. Slater v. Mead, 53 ow. Pr., 57. See Berry v. Peo., 1 N. Y. Cr., 43, 57.

$ 429. Reason for discharge.—Whenever the jury is discharged without a verdict, the reason for the discharge must be entered on the minutes.

§ 430. When no verdict, cause to be re-tried.In all cases where a jury are discharged, or prevented from giving a verdict, by reason of an accident 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.

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

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