with unless there is such a manifest departure from propriety as may result in defeating the ends of justice.1 An attorney for the party will be excepted from the order, and where he was mentioned as one of the witnesses who had been subpoenaed, express permission was obtained for him to remain.2 Where witnesses are ordered to withdraw, each party furnishes his list of them to the sheriff, whose duty it then becomes to take charge of them, and see that they are kept out of the hearing of each other's examination, and if the order be violated he will then know it and apprise the party. If the sheriff neglects his duty, the party will not be responsible. If certain of the witnesses be not in attendance, but are coming in, the party in whose behalf they are to testify, must either put their names on the list, or at his peril see that they do not violate the order by coming into court before they are called to testify. If there be no pretence that the newly arrived witnesses were in court, and hearing any of the testimony, then it is no objection that their names were not furnished to the sheriff, and they may, notwithstanding, be sworn. Those absent when the order to withdraw is made, cannot be embraced by it. If the party do not furnish a list to the sheriff, he is responsible that the witnesses present shall obey the order to withdraw.3 In general, when a witness has been ordered to retire from the court room, but remains in court, he will not be examined. But on the whole, it seems that although the right to exclude witnesses for willful disobedience of the order be well established, yet the judges are quite cautious of exercising the power. The reason probably is, because a party may in that way, without any fault of his own, be put in very great hazard by losing important testimony; he cannot prevent the misbehavior of the witness." The necessity for the separation of witnesses occurs more frequently in cases where an alibi is interposed as a defence, for the object of the separation is to afford the means of discovering discrepancies in the different accounts, which (if not true) the witnesses will give of the same transaction. Nelson v. State, 2 Swan, 237. Everett v. Lowdham, 5 C. & P., 91. 1 Arch. Cr. Pr., § 167; note cited as Anon., 1 Hill, 254, et seq. * 1 Arch. Cr. Pr., § 167, note; 4 C. & P., 585; 3 Murph., 487-490-493; 4 Moore & Payne, 483; 1 M. & M., 329. § 106. COMPELLING THE DISTRICT ATTORNEY TO ELECT ON WHICH OF SEVERAL COUNTS IN THE INDICTMENT HE WILL PROCEED. In general, where an indictment charges several felonies in distinct counts, the court at the trial, has a discretion, in compelling the district attorney to elect upon which count he will proceed accordingly. Where on the trial of an indictment containing several counts, e. g., one for receiving stolen goods, another for burglary, and a third for larceny, the prisoner's counsel, immediately after the jury were empaneled, moved that the district attorney be ordered to elect upon which count he would proceed, and the motion was denied; it was held that the court had a discretion as to the granting or refusing the order, and that their decision could not be reviewed upon a bill of exceptions.1 Where an indictment contains several counts charging the same offence in different forms, the prosecution will not be compelled to elect on which count they ask a conviction. Such election will be directed only when the several counts charge separate and distinct offences.2 Several misdemeanors may be joined in the same indictment, and a conviction for all may take place at the same time, and the prosecution cannot be compelled to select a single offence among those charged, and proceed for that alone; but where, in an indictment against three persons for misdemeanor, distinct offences were charged in different counts, and on the trial, the defendants being tried together, the evidence tended to show that two crimes had been committed, and when the prosecution rested, there was no evidence against one of the defendants in respect to one of the offences charged, though there was testimony tending to show them all guilty of the other offence, and the defendants applied to the court to compel the prosecutor to elect for which offence he would proceed, it was held that he should have been required to make such election; but it was questioned whether such refusal could be reviewed, the application having been addressed to the discretion of the court.3 § 107. OF EXCEPTIONS BY THE DEFENDANT UPON THE TRIAL. On the trial of any indictment, exceptions to any decision of Peo. v. Baker, 3 Hill, 159. Nelson v. Peo., 5 Park,, 39; Peo. v. Austin, 1 Park. Cr. R., 154. the court may be made by the defendant, in the same cases and manner allowed by law in civil cases, and a bill thereof shall be settled, signed and sealed, and shall be filed with the clerk of the court, and returned upon a writ of error as now authorized in personal actions, or upon a certiorari as provided by statute; and the same proceedings may be had to compel the signing and sealing of such bill and the return thereof.1 The discussion of this subject will be found fully considered in the subsequent chapter concerning writs of error on judgments and certioraris in criminal cases.2 § 108. OPENING OF THE CASE BY THE DISTRICT ATTORNEY. Under the English practice, after a full jury have been sworn, the petit jury is, as it is called, charged, that is, that the clerk of the court addresses the jury, stating the offence whereof the prisoner stands indicted, and informing them that they are to listen to the evidence and inquire whether the prisoner be guilty or not guilty of the offence charged.3 Under our practice, the district attorney or counsel engaged for the prosecution, if any, addresses the jury, briefly stating the nature of the offence charged, and such general remarks as he may see fit to make concerning the nature of the offence, and the facts he expects to prove, and then calls the witnesses to prove them.1 § 109. OF THE EXAMINATION OF THE WITNESSES FOR THE PROSECU TION. The rules applicable to the examination, cross-examination and re-examination of the witnesses are substantially the same as in civil actions, and belong more properly to a treatise upon evidence. The witness is first examined by the party producing him, after which the other party is at liberty to cross-examine; whereupon the party producing the witness may re-examine.5 On the primary examination of the witness, or, as it is generally called, his examination in chief, the counsel is bound at his peril to ask all material questions in the first instance, and if this 12 R. S., 736, § 23. • Post. 1 Arch. Cr. Pro., § 165. • Idem, § 168; 1 Moo. & R. 467; 7 C. & P., 773; 32 E. C. L. R.; Id., 785. ⚫ 5 Ired., 406. is omitted it cannot be done in reply. No new question can be put in reply unconnected with the subject of the cross-examination, and which does not tend to explain it. If a question as to any material fact has been omitted upon the examination in chief, the usual course is to suggest the question to the court, which will exercise its discretion in putting it to the witness.1 This general rule is adhered to with great strictness in criminal cases.2 When the examination is closed and the witness dismissed from the stand, it is a matter resting in the discretion of the court which receives the testimony to allow of a further examination.3 The same general rules, in relation to leading questions, improper evidence, &c., which are applicable in civil actions govern also criminal trials, and the witness has also the privilege of refusing to answer if he will thereby criminate himself, subject him to a penalty, or have a tendency to degrade his moral character; but it is the witness's privilege, and not the right of the party against whom he is called, to object to his giving evidence to criminate himself, and the court need not, upon the objection of such party and independently of any objection of the witness, inform the latter of the rule of law that he is not obliged to criminate himself;5 and if the witness waives his privilege, and testifies to a part of a transaction in which he was criminally concerned, he is obliged to state the whole." It is for the court to determine whether a direct answer to a question has a tendency to criminate a witness.7 Before the witness is sworn upon trials for felony the following oath is administered to him by the clerk: "The evidence you shall give between the people of the State of New York and the prisoner at the bar, shall be the truth, the whole truth, and nothing but the truth, so help you God." Upon the trial for a misdemeanor the following oath is administered to the witness: 1 1 Stark. Ev., 150. 2 Rex v. 621. Stimpson, 2 C. & P., 415; Rex v. Belgeby, 4 C. & P., 218; 2 Russ., Peo. v. Mather, 4 Wend., 250. Ward v. Peo., 3 Hill, 395; 19 Wend., 569. Com. v. Shaw, 4 Cush, 594. State v. Foster, 3 Foster (N. H.), 348. Peo. v. Mather, 4 Wend., 231; Thatch. Cr. Cases, 146. "The evidence you shall give in this issue of traverse between the people of the State of New York and A B, the defendant, shall be the truth, the whole truth, and nothing but the truth, so help you God." § 110. DISCHARGING ONE OF SEVERAL DEFENDANTS. Whenever two or more persons shall be included in the same indictment, and it shall appear that there is not sufficient evidence to put any defendant on his defence, it shall be the duty of the court to order such defendant to be discharged from such indictment before the evidence shall be deemed to be closed.1 § 111. OF THE OPENING OF THE CASE BY THE DEFENCE, AND THE WITNESSES FOR THE PRISONER AND OF WITNESSES IN REPLY. After the district attorney has closed his examination of the witnesses for the people and rested his case, as it is called, the counsel for the prisoner usually addresses the jury, stating briefly the facts constituting his defence; he then calls and examines his witnesses in support of the defence, and the same general rules in relation to evidence, leading and improper questions, &c., are applicable, as upon the trial of civil actions. If the defendant set up any defence, and call witnesses to prove it, the prosecutor may then give evidence in reply. This evidence must be strictly confined to the defence; the prosecutor will not be allowed to wander from that, even for the purpose of giving evidence on the original charge. Opening the case for new testimony on a trial for murder, after both parties have closed, rests in the discretion of the court.3 § 112. THE ADDRESSES TO THE JURY BY THE COUNSEL. After the evidence has been all introduced by the respective parties, the counsel for the prosecution and for the defendant may, by agreement, submit the cause to the jury for their deliberation and verdict, without argument, or they may address the jury at length in such observations and arguments as may have a bearing upon the cause on trial. These addresses to the jury 12 R. S., 735, § 21. 3 2 1 Arch. Cr. Pr., § 170. Stephens v. Peo., 4 Park., 396; Kalle v. Peo., Id., 591. |