§ 378. Grounds of challenge for actual bias. A challenge for actual bias may be taken for the cause mentioned in the second subdivision of section three hundred and seventy-six, and for no other cause. New. People v. McQuade (1888), 110 N. Y. 284, 21 Abb. N. C. 447. § 379. Exemption not a ground of challenge. An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted. New. § 380. Causes of challenge, how stated. In a challenge for implied bias, one or more of the causes stated in section three hundred and seventy-seven must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section three hundred and seventy-six must be alleged. In either case the challenge may be oral, but must be entered upon the minutes of the court. New. People v. Otto (1886), 101 N. Y. 690, 4 Crim. Rep. 155; People v. Larubia (1893), 69 Hun 200, 140 N. Y. 87, 23 N. Y. Supp. 580. § 381. Exceptions to challenge and denial thereof. The adverse party may except to the challenge, in the same manner as to a challenge to the panel; and the same proceedings must be had thereon, as prescribed in section three hundred and sixty-four, except that, if the challenge be allowed, the juror must be excluded. The adverse party may also orally deny the facts alleged as the ground of challenge. New. § 382. Challenge, how tried, if denied. If the facts be denied, the challenge must be tried by the court which must either allow or disallow the same and direct an entry accordingly on the minutes. If the challenge be allowed, the juror must be discharged. Derivation: L. 1873 ch. 427. People v. Petrea (1883), 30 Hun 103. § 383. Juror challenged may be examined as a witness. challenged may be examined as a witness, to prove or disprove the challenge; and is bound to answer every question pertinent to every inquiry therein. New. People v. Welch (1883), 1 Crim. Rep. 488; Deutschman v. Third Ave. R. R. Co (1903), 87 App. Div. 514, 84 N. Y. Supp. 887; People v. Hosier (1909), 132 App. Div, 146, 116 N. Y. Supp. 911. § 384. Rules of evidence on trial of challenge. Other witnesses may also be examined on either side; and the rules of evidence applicable to the trial of other issues, govern the admission or exclusion of testimony, on the trial of the challenge. New. People v. Welch (1883) 1 Crim. Rep. 488; People v. Hosier (1909), 132 App Div. 146, 116 N. Y. Supp. 911. § 385. Challenges, first by people and then by the defendant. Challenges to an individual juror must be taken first by the people and then by the defendant. New People v. McQuade (1888), 110 N. Y. 284, 21 Abb. N. C. 417; People v. McGonegal (1892), 136 N. Y. 62, 42 St. Rep. 310, 48 St. Rep. 901, 17 N. Y. Supp. 148; People v. Miles (1894), 62 St. Rep. 347; People v. Elliot (1901), 66 App. Div. 179, 180, 73 N. Y. Supp. 279. 2. To an individual juror, for a general disqualification; 3. To an individual juror, for implied bias; 4. To an individual juror, for actual bias; 5. Peremptory. New People v. Welch (1883), 1 Crim. Rep. 488. § 387. Jury to be sworn, etc. The first twelve persons who appear, as their names are drawn and called, who are approved as indifferent between the parties, and are not discharged or excused, must be sworn; and constitute the jury to try the issue. II. Conduct of the jury, after the cause is submitted to them. CHAPTER I. THE TRIAL. SECTION 388. In what order trial to proceed. 389. Defendant presumed innocent, until contrary proved; in case of reasonable doubt, entitled to acquittal. 390. When reasonable doubt of which degree he is guilty, he must be convicted of the lowest. 391. Separate trial of defendants jointly indicted. 392. Rules of evidence in civil cases applicable to criminal cases, except where otherwise provided in this Code. 393. Defendant as witness. 393a. Persons jointly indicted competent witnesses for each other. 395. Confession of defendant, when evidence, and its effect. 396, 397. Evidence on trial for treason. 398. Evidence on trial for conspiracy. 398a. Evidence on trial for abortion. 399. Conviction cannot be had on testimony of accomplice, unless corroborated. 400. If testimony show higher crime than that charged, court may discharge jury, and hold defendant to answer a new indictment. 401. If new indictment not found, defendant to be tried on the original indictment. 402. Court may discharge jury, where it has not jurisdiction of the offense, or the facts do not constitute an offense. 403. Proceedings, if jury discharged for want of jurisdiction of the offense, when committed out of the state. 404-407. Proceeding in such case, when offense committed in the state. 408, 409. Proceedings, if jury discharged because the facts do not constitute an offense. 410. When evidence on either side is closed, court may advise acquittak: effect of the advice. 411. View of premises, when ordered, and how conducted. 412. Duty of officer as to jury. 413. Knowledge of juror, to be declared in court, and juror to be sworn as witness. 414. Jurors may be permitted to separate during the trial; if kept to SECTION 415. Jurors not to converse together on the subject of the trial, nor form an opinion until the cause is submitted. 416. Proceedings, where juror becomes unable to perform his duty before conclusion of trial. 417. Court to decide questions of law arising during trial. 418. On indictment for libel, jury to determine law and fact. 419. In all other cases, court to decide questions of law, subject to right of defendant to except. 420. Charge to jury. 421. Jury may decide in court, or retire in the custody of officers; oath of the officers. 422. When defendant on bail appears for trial, he may be committed. § 388. In what order trial to proceed. The jury having been impanneled and sworn, the trial must proceed in the following order: 1. The district attorney, or other counsel for the people, must open the case, and offer the evidence in support of the indictment; 2. The defendant or his counsel may then open his defense, and offer his evidence in support thereof; 3. The parties may then, respectively, offer rebutting testimony, but the court, for good reason, in furtherance of justice, may permit them to offer evidence upon their original case; 4. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the defendant or his counsel must commence, and the counsel for the people conclude the argument to the jury; 5. The court must then charge the jury. Derivation: 4 R. S. 735 § 14. People v. Sickles (1898), 156 N. Y. 545; People v. Benham (1899) 160 N. Y. 436; People v. Connor (1892), 65 Hun 396, 48 St. Rep. 28, 20 N. Y. Supp. 209. § 389. Defendant presumed innocent, until contrary proved; in case of reasonable doubt, entitled to acquittal. A defendant in a criminal action is presumed to be innocent, until the contrary be proved; and in case of reasonable doubt. whether his guilt is satisfactorily shown, he is entitled to an acquittal. New. People v. Ledwon (1897), 153 N. Y. 10; People v. Sickles (1898), 156 N. Y. 550, 26 App. Div. 476 ; 50 N. Y. Supp. 377; People v. Ray (1899), 36 App. Div. 395, 55 N. Y. Supp. 410; People v. Fielding (1899), 36 App. Div. 415, 55 N. Y. Supp. 530; People v. Kelly (1896), 11 App. Div. 498, 42 N. Y. Supp. 756; Grant v. Riley (1897), 15 App. Div. 194, 44 N. Y. Supp. 238; Diefendorf v. Diefendorf (1890), 29 St. Rep. 122, 8 N. Y. Supp. 617; People v. Benedict (1892), 49 St. Rep. 286, 21 N. Y. Supp. 58; People v. Friedland (1896), 73 St. Rep. 518, 37 N. Y. Supp. 974; People v. Brickner (1891), 15 N. Y. Supp. 530; People v. Downs (1890), 7 Crim. Rep. 488, 56 Hun 11, 8 N. Y. Supp. 521; People v. Stephenson (1895), 11 Misc. 142; People v. Gluck (1907), 188 N. Y. 172; People v. Egnor (1903), 175 N. Y. 429; People v. Reiss (1906), 114 App. Div. 435, 99 N. Y. Supp. 1002; People ex rel. Gow v. Bingham (1907), 57 Misc. 71, 107 N. Y. Supp. 1011; People v. Dinser (1905), 49 Misc. 82, 86, 98 N. Y. Supp. 314; People v. Dillon (1910), 197 N. Y. 254, 259. § 390. When reasonable doubt of which degree he is guilty, he must be convicted of the lowest. When it appears, that a defendant has committed a crime, and there is reasonable ground of doubt, in which of two or more degrees he is guilty, he can be convicted of the lowest of those degrees only. New. People ex rel. Young v. Stout (1894), 63 St. Rep. 154, 30 N. Y. Supp. 898; People v. Sullivan (1903), 173 N. Y. 122, 130; Petty v. Emery (1904), 96 App. Div. 35, 88 N. Y. Supp. 823; People v. Fabian (1908), 126 App. Div. 95; People v. Foster (1908), 60 Misc. 14; People v. Fiorentino (1910), 197 N. Y. § 391. Separate trial of defendants jointly indicted. When two or more defendants are jointly indicted for a felony, any defendant requiring it, must be tried separately. In other cases, defendants, jointly indicted, may be tried separately or jointly, in the discretion of the court. Derivation: 4 R. S. 735 § 20. People v. Cotto (1892), 101 N. Y. 577; People v. Trimble (1892), 42 St. Rep. 716; Drake v. Weinman & Co. (1895), 67 St. Rep. 13, 33 N. Y. Supp. 177; People v. McElveney (1901), 36 Misc. 316, 73 N. Y. Supp. 639. § 392. Rules of evidence in civil cases applicable in criminal cases, except where otherwise provided in this Code. The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code. Whenever in any criminal proceedings a child actually or apparently under the age of twelve years offered as a witness does not in the opinion of the court or magistrate understand the nature of an oath, the evidence of such child may be received though not given under oath if, in the opinion of the court or magistrate such child is possessed of sufficient intelligence to justify the reception of the evidence. But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence. (Amended by L. 1892, ch. 279. In effect Sept. 1, 1892.) Derivation: 4 R. S. 735 § 14. |