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where the indictment is pending, with a copy of the affidavits or other papers on which the application is founded.
What affidavits must contain. Peo. v. Bodine, 7. Hill, 147; Peo. v. L. I. R. R. Co., 4 Park., 602 ; Peo. v. Harris, 4 Den., 150 ; Peo. v. Baker, 3 Park., 181 ; Peo..0. Sammis, 3 Hun, 560.
§ 347. Stay, how obtained, to apply for removal.To enable the defendant to make the application, a judge of the supreme court may, in his discretion, upon good cause shown by affidavit, make an order staying the trial of the indictment, until the application can be made and decided.
§ 348. Decision on application for stay.-When an application for an order to stay the trial is made to the supreme court, it must indorse its decision on the affidavits or other papers presented, and cause them to be immediately filed with the clerk of the court, in which the indictment is pending.
$ 349. But one application can be made.-If the application for an order to stay the trial has been made before one judge and denied, a similar application cannot be made to another judge.
$ 350. Violation of last section.—A violation of the last section is punishable not only as a misdemeanor, but as a contempt of the court in which the indictment is pending ; and that court must vacate an order of removal made in violation thereof.
$ 351. Proceedings on order of removal.-If the supreme court order the removal of the action, a certified copy of the order for that purpose must be delivered to and filed with the clerk of the court where the indictment is pending; who must thereupon transmit the same with the pleadings and proceedings in the action, including all undertakings for the appearance of the defendant or of the witnesses, or a certified copy of the same, to the court, to which the action is removed.
$ 352. Id. ; if defendant be in custody.-If the defendant be in custody, and the removal be to the court of oyer and terminer of another county, than that where the indictment is pending, the order must provide for the removal of the defendant, by the sheriff of the county where he is imprisoned, to the custody of the proper officer of the county to which the action is removed; and he must be forthwith removed accordingly.
§ 353. When order for removal must be filed.-An order for the removal of the action is of no effect, unless a certified copy thereof be filed, as required by section 351, before a juror is sworn to try the indictment. When thus filed, the court to which the action is removed, must proceed to trial and judgment therein.
Loomis v. Peo., 19 Hun, 601.
II. Formation of the trial jury.
THE MODE OF TRIAL.
SEC. 354. Issue of fact, defined.
355. How tried.
357. Preparation for trial. § 354. Issue of fact, defined.--An issue of fact arises, i. Upon a plea of not guilty ; or
2. Upon a plea of a former conviction or acquittal of the same crime.
$ 355. How Tried. -An issue of fact must be tried by a jury of the county in which the indictment was found, unless the action be removed, by order of the supreme court, into the court of oyer and terminer of
another county, as provided in the second subdivision of section 344.
§ 356. Appearance. If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant, if he appear by counsel ; but if the indictment be for a felony, the defendant must be personally present.
Presence in connecting room. Peo. v. Bragle, 88 N. Y., 585 ; 8. C., 26 Hun, 378.
§ 357. Preparation for trial.- After his plea, the defendant is entitled to at least two days to prepare for his trial, if he require it.
Postponement on account of absent witnesses. People v. Vermilyea, 7 Cow., 369. Afidavits therefor, what to contain. Broad's Case, 3 c. H. Rec., 7; Peo. v. Wilson, 3 Park. 199; Peo. v. Horton, 4 ib., 222. No exception lies to refusal to postpone trial for witnesses. Eighmy v. Peo., 79 N. Y., 516.
FORMATION OF THE TRIAL JURY.
SEC. 358. Jurors in criminal courts.
§ 358. Jurors in criminal courts.-The trial jury is formed, as prescribed by the Code of Civil Procedure.
Qualifications of trial jurors. Code of civil procedure, $$ 1027– 1062 inclusive. Formation of the jury, Ib., $$ 1163-1180; ib., $$ 1190, 3350, 3351. Alien not entitled to special jury. Ib., $ 1190. Trial jurors in Kings county. lb., $$ 1029, 1126-1162, 1174, 1191. Trial jurors in city and county of New York. Ib., 96 1029, 1079– 1125, 1174, 1191. Legislature may regulate manner of procuring jury. Stokes v. Peo., 53 N. Y., 164; Gardner v. Peo., 6 Park., 155. Mere irregularities in drawing jury, not prejudicial, no ground of error. Cox v. Peo., 80 N. Y., 500 ; Peo. v. Petrea, 30 Hun, 98 ; s. C., 92 N. Y., 128.
CHALLENGING THE JURY.
SEC. 359. Definition and division of challenges. 360. When there are several defendants, they must unite in
their challenges. 361. Challenge to the panel, defined. 362. Upon what founded. 363. When and how taken. 364. If sufficiency of the facts be denied, adverse party
may except. Exception, how made and tried.
SEC. 365. If exception overruled, court may allow denial of
challenge. If allowed, may permit challenge to be
amended. 366. Denial of challenge, how made, and trial thereof. 367. Who may be examined on trial of challenge. 368. If challenge allowed, jury to be discharged. If dis.
allowed, jury to be impaneled. 369. Defendant to be informed of his right to challenge an
individual juror. 370. Kinds of challenge to individual juror. 371. Challenge, when taken. 372. Peremptory challenge. 373. Number of peremptory challenges. 374. Definition and kinds of challenge for cause. 375. General causes of challenge. 376. Particular causes of challenge. 377. Grounds of challenge for implied bias. 378. Grounds of challenge for actual bias. 379. Exemption, not it ground of challenge. 380. Causes of challenge, how stated. 381. Exceptions to challenge and denial thereof. 382. Challenge, how tried, if denied. 383. Juror challenged may be examined as a witness. 384. Rules of evidence on trial of challenge. 385. Challenges, first by defendant and then by the people. 386. Order of challenges. 387. Jury to be sworn, etc.
§ 359. Definition and division of challenges.—A challenge is an objection made to trial jurors, and is of two kinds:
1. To the panel ;
§ 360. Challenges on joint trials.—When several defendants are tried together they cannot sever their challenges, but must join therein.
s 361. Challenge to the panel, defined. — A challenge to the panel is an objection made to all the trial jurors returned, and may be taken as well to the panel returned for the term, as to an additional panel ordered to coinplete the jury.
Prisoner can waive challenge to the array after it is allowed. Picrson v. Peo., 79 N. Y., 421.
§ 362. Upon what founded. — A challenge to the panel can be founded only on a material departure, to
the prejudice of the defendant, from the forms prescribed by the Code of Civil Procedure, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn.
§ 363. When and how taken.-A challenge to the panel must be taken before a juror is sworn, and must be in writing, specifying distinctly the facts constituting the ground of challenge. A challenge in the alternative is bad. Cox v. Peo., 19 Hun,
§ 364. If sufficiency of the facts be denied. If the sufficiency of the facts alleged as a ground of challenge be denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered upon the minutes of the court; and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true.
Cox v. Peo., 19 Hun, 430; 80 N. Y., 500,
§ 365. Court, may afterwards, allow withdrawal of exception or amendment to challenge. - If, on the exception, the court deem the challenge sufficient, it may, if justice require it, permit the party excepting, to withdraw his exception, and to deny the facts alleged in the challenge. If the exception be allowed, the court may, in like manner, permit an amendment of the challenge.
§ 366. Denial of challenge, how made, and trial thereof. — If the challenge be denied, the denial may, in like manner, be oral, and must be entered upon the minutes of the court; and the court must proceed to try the question of fact.
§ 367. Who may be examined on trial of challenge. — Upon the trial of the challenge, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge.