§ 708. Talesmen, when and how ordered and summoned. If six of the jurors summoned do not attend, or be not obtained, the court may direct the officer to summon any of the bystanders, or others, who may be competent, and against whom there is no sufficient cause of challenge, to act as jurors.

§709. Punishing officer for not returning list; issuing new order for jury.-If the officer to whom the order is delivered do not return it, as required by section 704, he may be punished by the court, as for contempt; and the court must issue a new order for the summoning of jurors, in substantially the same form; upon which the same proceedings must be had as upon the one first issued.

§ 710. Jury, how constituted. When six jurors appear and are accepted, they constitute the jury.

§ 711. Their oath.-The court must thereupon administer to the jury the following oath or affirmation: “You do "swear," [or "you do solemnly affirm," as the case may be,]" that you will well and truly try this issue, between the people of the state of New York and A. B., the defendant, and a true verdict give, according to the evidence."

§ 712. Trial, how conducted. After the jury are sworn, they must sit together and hear the proofs and allegations of the parties, which must be delivered in public, and in the presence of the defendant.

713. Jury may decide in court, or retire. Oath of officer. After hearing the proofs and allegations, the jury may either decide in court or may retire for consideration. If they do not immediately agree, an officer must be sworn to the following effect: " You do swear, that you will keep this jury together in some private and convenient place, without food or drink, except bread and

water, unless otherwise ordered by the court; that you will not permit any person to speak to or communicate with them, nor do so yourself, unless it be to ask them whether they have agreed upon a verdict; and that you will return them into court when they have so agreed, or when ordered by the court."

§ 714. Delivering verdict, and entry thereof.-When the jury have agreed on their verdict, they must deliver it publicly to the court, which must enter it in its minutes.

§ 715. Discharge of jury without verdict.-The jury cannot be discharged, after the cause is submitted to them, until they have agreed upon and rendered their verdict unless, for some cause within the meaning of sections 428 and 429, the court sooner discharge them.

§ 716. When cause to be retried. If the jury be discharged, as provided in the last section, the court may proceed again to the trial, in the same manner as upon the first trial; and so on, until a verdict is rendered.

§ 717. Judgment on conviction.-When the defendant pleads guilty, or is convicted either by the court or by a jury, the court must render judgment thereon, of fine or imprisonment, or both, as the case may require; but the fine cannot exceed fifty dollars, nor the imprisonment six months.

2 N. Y. Cr., 313; ib., 438.

§ 718. Judgment of imprisonment, until fine be paid. Extent of imprisonment.-A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied: specifying the extent of the imprisonment, which cannot exceed one day for every one dollar of the fine.

§ 719. Defendant, on acquittal, to be discharged. Order that prosecutor pay the costs.-When the defend

ant is acquitted, either by the court or by a jury, he must be immediately discharged; and if the court certify, upon its minutes, or the jury find that the prosecution was malicious or without probable cause, the court must order the prosecutor to pay the costs of the proceedings, or to give satisfactory security, by a written undertaking, with one or more sureties, to pay the same to the county within thirty days after the trial.

$720. Judgment against prosecutor for costs.—If the prosecutor do not pay the costs or give security therefor, the court may enter judgment against him for the amount thereof, which may be enforced, in all respects, in the same manner as a judgment rendered by a justice's court held by a justice of the peace.

See Germond v. Peo., 1 Hill, 343; Peo. v. Norton, 2 N. Y. Cr., 322.

§ 721. Certificate of conviction. Its form. When a conviction is had, upon a plea of guilty or upon a trial, the court must make and sign a certificate in substantially the following form:

"Court of Special Sessions, or Police Court,

"County of Albany. Town of Berne, [or as the case may be].

"The People of the state of New York

"The above-named A. B., having been brought before C. D., justice of special sessions, justice of the peace [or other magistrate, as the case may be] or police justice, of the town [or city or village] of [as the case may be] charged with [briefly designating the offense], and having thereupon pleaded guilty or not guilty, [as the case may be,] and demanded [or failed to demand," as the case may be,] a jury, and

having been thereupon duly tried, and upon such trial, duly convicted.

It is adjudged that he be imprisoned in the jail of this county days [or "pay a fine of

be imprisoned until it be paid, not exceeding or both as the case may be.]

"Dated at the town [or "city"] of

day of

18

C. D.,

dollars and

days,"

the

Justice of the peace or police justice or other magistrate [as the case may be] of the town [as the case

[or "city"] of,
may be.]

the

Peo. v. Sadler, 97 N. Y., 146.

§722. Id. - If the defendant have pleaded guilty, instead of the second paragraph, the certificate must state substantially as follows: "And the above-named A. B. having been thereupon duly convicted, upon a plea of guilty."

§ 723. Certificate, when filed.- Within twenty days after the conviction, the court must cause the certificate to be filed in the office of the clerk of the county.

§ 724. Certificate conclusive evidence. The certificate, made and filed as prescribed in the last two sections, or a certified copy thereof, is conclusive evidence of the facts stated therein.

Form. Ex parte, Morris, 2 Ed. S. C., 381

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§ 725. Judgment, by whom executed. -The judgment must be executed by the sheriff of the county, or by a constable, marshal or policeman of the city, village or town in which the conviction is had, upon receiving a copy of the certificate prescribed in section 721, certified by the court or the county clerk.

$ 725. Fine, by whom received before commitment and how applied. If a fine imposed be paid before commitment, it must be received by the court, and within thirty days after its receipt paid by such court into the county treasury. [Am'd ch. 392 of 1884.]

If the defendant be

$727. Id.; after commitment. committed for not paying a fine, he may pay it to the sheriff of the county, but to no other person; who must in like manner, within thirty days after the receipt thereof, pay it into the county treasury.

§ 728. Proceedings against magistrate or sheriff on neglect to pay fine into the county treasury.—If the court or sheriff receiving the fine, fail to pay it into the county treasury, the county treasurer must immediately commence an action therefor against the sheriff or the magistrates comprising the court, in the name of the county. [Am'd ch. 392 of 1884.]

§729. Subpoenas and punishing their disobedience. The court may issue subpoenas for witnesses, as provided in section 608, and punish disobedience thereof, as provided in section 619.

If a

§ 730. Punishing jurors for non-attendance. person summoned as a juror fail to appear, he may be punished by a fine not exceeding five dollars imposed by the court, by an order entered in his minutes. The order is deemed a judgment, in all respects, in favor of the poor of the town or city.

§ 731. No fees to jurors or witnesses. - No fees are payable to a juror or witness, for his service or attendance in a court of special sessions.

§ 732. When defendant requests a trial by police court, preliminary examination dispensed with. When the defendant, upon being brought before the magistrate, requests a trial by a court of special sessions, the preliminary examination of the case is dispensed with.

§ 733. During time allowed for bail, and until judgment, defendant to be continned in custody of officer or committed to jail. During the time allowed to the defendant to give bail, and until judgment is given, he may be continued in the custody of the officer, or committed to the jail of the county to answer the charge, as the magistrate may direct.