§ 1140. Not to be discharged for any other cause, unless there is no reasonable probability that they can agree. Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.

Legislation § 1140. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 428); in substance the same as Crim. Prac. Act, Stats. 1851, p. 256, § 410.

§ 1141. When jury discharged or prevented from giving a verdict, cause to be again tried. In all cases where a jury is discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged during the progress of the trial, or after the cause is submitted to them, the cause may be again tried. [Amendment approved 1880; Code Amdts. 1880, p. 24.]

New trial: See post, § 1181.

Jeopardy: See ante, § 687.

Discharge without verdict, retrial of cause: See post, § 1147.

Legislation § 1141. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 430); in substance the same as Crim. Prac. Act, Stats. 1851, p. 256, § 411. When enacted in 1872, § 1141 read: "1141. 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."

2. Amended by Code Amdts. 1880, p. 24.

§ 1142. Court may adjourn during absence of jury, but deemed open for all purposes connected with cause. While the jury are absent the court may adjourn from time to time, as to other business, but it must nevertheless be open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged.

Legislation § 1142. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 431); in substance the same as Crim. Prac. Act, Stats. 1851, p. 257, § 412.

§ 1143. Jurors' fees. Payment of same. The fees of jurors in the superior courts of the state, in criminal cases, shall be two dollars, in lawful money of the United States, for each day's attendance, and mileage, to be computed at the rate of fifteen cents per mile for each mile necessarily traveled in attending court, in going only. Such fees and mileage shall be paid by the treasurer of the county, or city

and county, in which the juror's services were rendered, out of the general fund of said county, or city and county, upon warrants drawn by the county auditor upon the written order of the judge of the court in which said juror was in attendance, and the treasurer of said county, or city and county, shall pay said warrants. The board of supervisors of each county, or city and county, is hereby directed to make suitable appropriation for the payment of the fees. herein provided for.

Legislation § 1143. Added by Stats. 1901, p. 290. The original code § 1143 read, "A final adjournment of the court discharges the jury," and was repealed by Code Amdts. 1880, p. 6.

§ 1156.

§ 1157.

When special verdict defective, new trial to be ordered.
Jury to find degree of crime.

Jury may find upon charge of previous conviction.
Jury may convict of a lesser offense or of an attempt.
Verdict as to some defendants and another trial as to others.
In what cases court may direct a reconsideration of the ver-
dict.

When judgment may be given on informal verdict.
Polling the jury.

§ 1164.

Recording the verdict.

§ 1165.

Defendant, when to be discharged or detained after acquittal.

§ 1166. Proceedings upon general verdict of conviction or a special

verdict.

§ 1167. Proceedings on acquittal on ground of insanity.

§ 1147. Return of jury. 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 case the action may be again tried. [Amendment approved 1905; Stats. 1905, p. 697.]

Discharge without verdict, retrial of cause: See ante, § 1141.
Proceedings when verdict reached: See post, § 1164.

Legislation § 1147. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 433); in substance the same as Crim. Prac. Act, Stats. 1851, p. 257, § 414.

2. Amendment by Stats. 1901, p. 488; unconstitutional. See note, § 5, ante.

3. Amended by Stats. 1905, p. 697, omitting "at the same, or another term," at end of section; the code commissioner saying, "because there are now no terms of court."

§ 1148. Appearance of defendant. If charged with a felony, the defendant must, before the verdict is received, appear in person. If for a misdemeanor, the verdict may be rendered in his absence. [Amendment approved 1880; Code Amdts. 1880, p. 24.]

Judgment in defendant's presence: See post, § 1193.

Legislation § 1148. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 434); in substance the same as Crim. Prac. Act, Stats. 1851, p. 257, § 415.

2. Amended by Code Amdts. 1880, p. 24, changing "If indicted for" to "If charged with."

§ 1149. Manner of taking verdict. When the jury appear they must be asked by the court, or clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the

same.

Legislation § 1149. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 435); in substance the same as Crim. Prac. Act, Stats. 1851, p. 257, § 416.

§ 1150. Verdict may be general or special. The jury may render a general verdict, or, when they are in doubt as to the legal effect of the facts proved, they may, except upon a trial for libel, find a special verdict. [Amendment approved 1880; Code Amdts. 1880, p. 24.]

Verdict in libel: See ante, §§ 1125, 1126.

Legislation § 1150. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 436); based on Crim. Prac. Act, Stats. 1851, p. 257, § 417, which read: "§ 417. The jury may either render a verdict, or when they are in doubt as to the legal effect of the facts proved, they may, except upon an indictment for libel, file a special verdict."

2. Amended by Code Amdts. 1880, p. 24, changing "an indietment" for "a trial."

§ 1151. 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." When the defendant is acquitted on the ground that he was insane at the time of the commission of the act charged, the verdict must be "not guilty by reason of insanity." When the defendant is acquitted on the

ground of variance between the indictment and the proof, the verdict must be "not guilty by reason of variance between indictment and proof." [Amendment approved 1874; Code Amdts. 1873-74, p. 446.]

Form of verdict: See post, § 1158.

Legislation § 1151. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 437, 454); based on Crim. Prac. Act, Stats. 1851, p. 257, § 418, which read: "§ 418. A general verdict upon a plea of not guilty, is either 'guilty' or 'not guilty,' which imports a conviction or acquittal on every material allegation 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.'" When enacted in 1872, the section was composed of the first two sentences of the present section.

2. Amended by Code Amdts. 1873-74, p. 446, adding the last two sentences.

§ 1152. 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 conclusions of law upon them.

Legislation § 1152. Enacted February 14, 1872 (N. Y. Code Crim. Proc., 438); in exact language of Crim. Prac. Act, Stats. 1851, p. 257, § 419.

§ 1153. Special verdict, how rendered. The special verdiet 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.

Legislation § 1153. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 439); in exact language of Crim. Prae. Act, Stats. 1851, p. 257, § 420.

§ 1154. Form of special verdict. The special verdict need not be in any particular form, but is sufficient if it present intelligibly the facts found by the jury.

Legislation § 1154. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 440); in substance the same as Crim. Prac. Act, Stats. 1851, p. 257, § 421.

§ 1155. Judgment on special verdict. The court must give judgment upon the special verdict as follows:

1. If the plea is not guilty, and the facts prove the defendant guilty of the offense charged in the indictment, or of any other offence of which he could be convicted under that indictment, judgment must be given accordingly. But if otherwise, judgment of acquittal must be given.

2. If the plea is a former conviction or acquittal of the same offense, the court must give judgment of acquittal or conviction, as the facts prove or fail to prove the former conviction or acquittal.

Plea of former judgment of conviction or acquittal: See ante § 1016, subd. 3.

Legislation § 1155. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 442); based on Crim. Prac. Act, Stats. 1851, p. 257, § 422. which read: "8 422. The court shall give judgment upon the special verdict, as follows: 1st. 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 as provided in section four hundred and twenty-four, under that indictment judgment shall be given accordingly. But if the facts found do not prove the defendant guilty of the offense charged, or of any offense of which he could be so convicted under the indictment, judgment of acquittal shall be given. 2d. If the plea be a former conviction or acquittal of the same offense, the court shall give judgment of acquittal or conviction according as the facts prove or fail to prove the former conviction or acquittal.”

§ 1156. When special verdict defective, new trial to be ordered. 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.

New trial: See post, § 1181.

Legislation § 1156. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 443); in substance the same as Crim. Prac. Act, Stats. 1851, p. 258, § 423.

§ 1157. Jury to find degree of crime. Whenever a crime. is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.

Legislation § 1157. Enacted February 14, 1872; based on Crimes and Punishment Act, § 21, as amended by Stats. 1856, p. 219, § 2; the clause of § 21 on which the code section is based reading, "and the jury before whom any person indicted for murder shall be tried. shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree."

§ 1158. Jury may find upon charge of previous conviction. Whenever the fact of a previous conviction of another offense is charged in an indictment or information, the jury, if they find a verdict of guilty of the offense with which he is charged, must also, unless the answer of the defendant admits the charge, find whether or not he has suffered such previous conviction. The verdict of the jury upon a charge