§ 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.

Reading report of trial. Peo. v. Gaffney, 1 Sheld 304. Presence of officers in jury room. Peo. v. Draper, 23 Hun, 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, 448.

§ 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 to jury after retiring, even by consent. They must be brought into court. Plunkett v. Appleton, 51 How. Pr., 469. Magistrate canPlunkett v.. not send answer to communication from jury. Appleton, 9 J. & Sp., 159; Gillotte v. Jackson, ib., 308 Mahoney v. Decker, 18 Hun, 365; Peo. v. Cassiano, 30 Hun, 388; Peo. v. Kelly, 2 N. Y. C. R., 15; 17 W. Dig., 499.

See also

§ 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 low. 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 submitted to the jury, until a verdict is rendered or the jury discharged.

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

CHAPTER III.

THE VERDICT.

SEC. 433. 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.

434. In felony, defendant must be present.

In misde

meanor, verdict may be rendered in his absence.

435. Manner of taking the verdict.

436. Verdict may be general or special.

437. General verdict.

438. Special verdict.

439, 440. Special verdict, how rer. dered.

441. Special verdict, how brought to argument.

442. Judgment thereon.

443. When special verdict defective, new trial to be or dered.

444. Upon indictment for crime consisting of different degrees, jury may convict of any degree, or of any attempt to commit the crime.

445. In other cases, jury may convict of any offense necessarily included in that charge.

446. On indictment against several, jury may render a verdict as to some, and the cause be again tried as to the others.

447, 448. In what cases court may direct a reconsideration of the verdict.

449. When judgment may be given upon an informal verdict.

450. Polling the jury.

451. Recording the verdict.

452. Defendant, when to be discharged or detained after acquittal.

453. Proceedings upon general verdict of conviction, or a special verdict.

454. When defendant acquitted on the ground of insanity, the fact to be stated with the verdict. Commitment of defendant to state lunatic asylum.

433. Jury after agreement -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.

434. When defendant must be present. 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 his ab

sence.

§ 435. 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.

Verdict cannot be received in absence of justices. Hinman v. Peo., 13 Iun, 266.

§ 436. Verdict may be general or special. 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

sentence for the highest offense Hawker v. Peo., 75 N. Y., 487. Special verdict. Miller v.

Under general verdict of guilty, charged in indictment is proper. See Peo. v. Bork, 1 N. Y. Cr., 393. Peo., 25 Hun, 473.

437. 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."

§ 438 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.

13 W. Dig., 260; Miller v. Peo., 25 Hun, 473.

$439. Id.; how rendered. 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.

§ 440. Id.; form.-The special verdict need not be in any particular form, but is sufficient, if it present intel.. ligibly the facts found by the jury.

(441. Id.; how brought to argument. 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.

§ 442. 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.

§ 443. Defective special verdict. 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.

§ 444. Conviction for any lower degree, or of an attempt.-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.

Petit larceny on indictment for grand. Peo. v. McTameny, 17 W. D., 492.

§ 445. Offenses necessarily included.-In all other cases, the defendant may be found guilty of any crime,