the commission of which is necessarily included in that with which he is charged in the indictment. See Peo. v. Jackson, 3 Hill, 92. § 446. On Joint trial, jury may render a verdict as to some.-On an indictment against one or more, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly; and the case, as to the rest, may be tried by another jury. § 447. When court may direct a reconsideration of the verdict.-When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict; and if, after the reconsideration, they return the same verdict, it must be entered. But when there is a verdict of acquittal, the court cannot require the jury to reconsider it. § 448. Id. If the jury render a verdict which is neither a general nor a special verdict, as defined in sections 437 and 438, the court may, with proper instructions as to the law, direct them to reconsider it; and it cannot be recorded, until it be rendered in some form, from which it can be clearly understood what is the intent of the jury, whether to render a general verdict, or to find the facts specially, and leave the judgment to the court. § 449. Judgment upon an informal verdict.-If the jury persist in finding an informal verdict, from which, however, it can be clearly understood, that their intention is to find in favor of the defendant, upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But nc judgment of conviction can be given, unless the jury expressly find against the defendant, upon the issue, or judgment be given against him on a special verdict. § 450. Polling the jury.-When a verdict is rendered, and before it is recorded, the jury may be polled, on the requirement of either party; in which case, they must be severally asked whether it is their verdict; and if any one answer in the negative, the jury must be sent out for further deliberation. §451. Recording the verdict.—When the verdict is given, and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and must read it to the jury and inquire of them whether it is their verdict. If any juror disagee, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement be expressed, the verdict is complete, and the jury must be discharged from the case. § 452. Discharge or detention after acquittal.—If judgment of acquittal be given on a general verdict, and the defendant be not detained for any other legal cause, he must be discharged as soon as the judgment is given; except that when the acquittal is for a variance between the proof and the indictment, which may be obviated by a new indictment, the court may order his detention, to the end that a new indictment may be preferred, in the same manner and with the like effect as provided in sections 408 and 409. §453. Proceedings upon verdict.-If a general verdict be rendered against the defendant, or a special verdict be given, he must be remanded, if in custody, or if on bail, he may be committed to the proper officer of the county, to await the judgment of the court upon the verdict. When committed, his bail is exonerated, or if money be deposited instead of bail, it must be refunded to the defendant. § 454. Acquittal on the ground of insanity.- When the defense is insanity of the defendant the jury must be instructed, if they acquit him on that ground, to state the fact with their verdict. The court must, thereupon, if the defendant be in custody, and they deem his discharge dangerous to the public peace or safety, order him to be committed to the state lunatic asylum, until he becomes sane. SEC. 455. In what cases. 456. By whom settled, and how flled. 457. To be settled at the trial, or the point noted in writing. 458, 459. When and how settled, after the trial. 460. Enlarging the time therefor. 461. Effect of not serving exceptions or amendments, within the time prescribed. § 455. In what cases.-On the trial of an indictment, exceptions may be taken by the defendant, to a decision of the court, upon a matter of law, by which his substantial rights are prejudiced and not otherwise, in any of the following cases: 1. In disallowing a challenge to the panel of the jury; 2. In admitting or rejecting testimony on the trial of a challenge for actual bias to any juror who participated in the verdict, or in allowing or disallowing such challenge; 3. In admitting or rejecting witnesses or testimony, or in deciding any question of law, not a matter of discretion, or in charging or instructing the jury upon the law, on the trial of the issue. Peo. v. Petmecky, 2 N. Y. Cr., 450. § 456. How settled and filed.-A bill containing the exceptions must be settled and signed by the presiding judge, and filed with the clerk. § 457. When to be settled.-The bill of exceptions must be settled at the trial unless the court otherwise direct. If no such direction be given, the point of the exception must be particularly stated in writing, and delivered to the court, and must immediately be corrected or added to, until it is made conformable to the truth. §458. When and how settled, after the trial.—If the bill of exceptions be not settled at the trial it must be prepared and served, within five days thereafter, on the district attorney, who may, within five days, serve on the defendant or his counsel, amendments thereto. The defendant may then, within five days, serve the district attorney with a notice to appear before the presiding judge of the court, at a specified time, whether in or out of court, not less than five nor more than ten days thereafter, to have the bill of exceptions settled. § 459. Id. At the time appointed, the judge must settle and sign the bill of exceptions. § 460. Enlarging the time therefor.-The time for preparing the bill of exceptions or the amendments thereto, or for settling the same, may be enlarged by consent of the parties, or by the presiding judge, or by a judge of the supreme court, but by no other officer. § 461. Failure to serve exceptions or amendments.— If the bill of exceptions be, not served within the time prescribed in section 458, or within the enlarged time therefor, as prescribed in the last section, the exceptions are deemed abandoned. If it be served, and the parties omit, within the time limited by section 458, the one to prepare amendments, and the other to give notice of appearance before the judge, they are respectively deemed, the one to have agreed to the bill of exceptions, and the other to the amendments. 464. Effect of granting new trial. 466. Application, when to be made. $462. New trial. A new trial is a re-examination of the issue, in the same court, before another jury, after a verdict has been given. § 463. When granted.-A new trial can be granted by the court in which the former trial was had, only in the cases provided in section 465. § 464. Effect of granting new trial.— The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew; and the former verdict cannot be used or referred to, either in evidence or in argument. § 465. When granted.-The court in which a trial has been had upon an issue of fact has power to grant a new trial, when a verdict has been rendered against the defendant, by which his substantial rights have been prejudiced, upon his application, in the following cases: 1. When the trial has been had in his absence, if the indictment be for a felony; 2. When the jury has received any evidence out of court, other than that resulting from a view, as provided in section 411; 3. When the jury have separated without leave of the court, after retiring to deliberate upon their verdict, or have been guilty of any misconduct by which a fair and due consideration of the case has been prevented; 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors; 5. When the court has misdirected the jury in a matter of law, or has refused to instruct them as prescribed |