ascertained, does in judgment of law disqualify the juror, and which is known in this Code as implied bias; 2. For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that such juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this Code as actual bias. But the previous expression or formation of an opinion or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sufficient ground of challenge for actual bias, to any person otherwise legally qualified, if he declare on oath, that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied, that he does not entertain such a present opinion or impression as would influence his verdict. See note on competency of jurors in criminal cases, 6 N. Y. Cr. Rep. at page 39. This provision intended to remove the strict former rule. People v. Welch, 1 N. Y. Cr. Rep. 486. When juror is disqualified. People v. Casey, 96 N. Y. 115; 2 N. Y. Cr. Rep. 194. Previous opinion. People v. Willett, 3 N. Y. Cr. Rep. 324; 36 Hun, 500. Subd. 2. People v. Carpenter, 102 N. Y. 234, affg. 38 Hun, 490; 4 N. Y. Cr. Rep. 177; People v. Crowley, 102 N. Y. 234; 4 N. Y. Cr. Rep. 168, affg. 4 N. Y. Cr. Rep. 26; People v. Otto, 101 N. Y. 690; 4 N. Y. Cr. Rep. 149, affg. 38 Hun, 97; People v. Sharp, 5 N. Y. Cr. Rep. 155; People v. O'Neil, 109 N. Y. 251, affg. 48 Hun, 36; People v. McQuade, 110 N. Y. 284; 21 Abb. N. C. 417; People v. Willson, 109 N. Y. 345; People v. Cornetti, 92 N. Y. 85; 1 N. Y. Cr. Rep. 303; People v. Wah Lee Mon, 37 N. Y. St. Rep. 283; 13 N. Y. Supp. 767; People v. McGonegal, 136 N. Y. 62; People v. Martell, 138 N. Y. 595; People v. McLaughlin, 2 App. Div. 419, mod., 150 N. Y. 365; Laidlaw v. Sage, 2 App. Div. 374; People v. Wilmarth, 29 App. Div. 612, affd., 156 N. Y. 566; Cox v. People, 80 N. Y. 500; Abbott v. People, 86 N. Y. 460; People v. Flaherty, 162 N. Y. 532; People v. Miller, 81 App. Div. 255. See Balbo v. People, 80 N. Y. 484; People v. Petrea, 30 Hun, 98; 1 N. Y. Cr. Rep. 198, affd., 92 N. Y. 128; 1 N. Y. Cr. Rep. 233; Young v. Johnson, 46 Hun, 164. § 377. Grounds of challenge for implied bias. A challenge for implied bias may be taken for all or any of the following causes, and for no other: 1. Consanguinity or affinity within the ninth degree, to the person alleged to be injured by the crime charged, or on whose complaint the prosecution was instituted, or to the defendant; 2. Bearing to him the relation of guardian or ward, attorney or client, or client of the attorney or counsel for the people or defendant, master or servant, or landlord or tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages; 3. Being a party adverse to the defendant in a civil action or having complained against, or been accused by him in a criminal prosecution; 4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment; 5. Having served on a trial jury, which has tried another person for the crime charged in the indictment; 6. Having been one of a jury formerly sworn to try the same indictment, and whose verdict was set aside or which was discharged without a verdict, after the cause was submitted to it; 7. Having served as a juror, in a civil action brought against the defendant, for the act charged as a crime; 8. If the crime charged be punishable with death, the enter taining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he shall neither be permitted nor compelled to serve as a juror. People v. Petrea, 30 Hun, 98; 1 N. Y. Cr. Rep. 198, affd., 92 N. Y. 128; 1 N. Y. Cr. Rep. 233. Subd. 1. People v. Clark, 62 Hun, 84; People v. Mack, 35 App. Div. 114; Subd. 2. People v. McQuade, 110 N. Y. 284; 21 Abb. N. C. 417. 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 376, and for no other cause. Cause for challenge for bias. People v. McQuade, 110 N. Y. 284; 21 Abb. N. C. 417. § 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. Code Civil Procedure, §§ 1030-1034, inc., 1081-1083, inc., 1127-1131, inc. § 380. Causes of challenge, how stated. In a challenge for implied bias, one or more of the causes stated in section 377 must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section 376 must be alleged. In either case, the challenge may be oral, but must be entered upon the minutes of the court. See § 376 and 377, ante. Sufficiency. People v. Otto, 101 N. Y. 690; 4 N. Y. Cr. Rep. 149, affg. 38 Inn, 97. See People v. Larubia, 69 Hun, 197, affd., 140 N. Y. 87; Freeman v. People, 4 Denio, .1. 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 364, 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. § 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. People v. Petrea, 30 Hun, 98, affd., 92 N. Y. 128; Greenfield v. People, 74 N. Y. 277. § 383. Juror challenged may be examined as a witness. Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness, to prove or disprove the challenge; and is bound to answer every question pertinent to the inquiry therein. People v. Welch, 1 N. Y. Cr. Rep. 486. § 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. People v. Welch, 1 N. Y. Cr. Rep. 486. § 385. Challenges, first by the people and then by the defendant. Challenges to an individual juror must be taken first by the people and then by the defendant. Am'd L. 1882, ch. 360. This section is imperative. People v. McQuade, 110 N. Y. 284; 21 Abb. N. C. 417. How this applies. People v. McGonegal, 42 N. Y. St. Rep. 307; 17 N. Y. Supp. 147, affd., 136 N. Y. 62. See People v. Miles, 143 N. Y. 383; People v. Elliott, 66 App. Div. 179. § 386. Order of challenges. Challenges of either party must be taken: 1. To the panel. 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. Am'd L. 1882, ch. 360. People v. Welch, 1 N. Y. Cr. Rep. 486. Reserving right. People v. McGonegal, 136 N. Y. 62; People v. Miles, 143 N. Y. 383. See note on challenging jurors. 21 Abb. N. C. 453. § 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. Time of swearing the jury is discretionary. People v. Carpenter, 102 N. Y. 238. 119 II. Conduct of the jury, after the cause is submitted to them. CHAPTER I. The Trial. Sec. 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. 393. Defendant as witness. Evidence of certain children, how received. 394. Compensation of witness. 395. Confession of defendant, when evidence, and its effect. 396, 397. Evidence on trial for treason. 398. Evidence on trial for conspiracy. 399. Conviction can not 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. Proceedings 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 acquittal. 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 together, oath of the officers. 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 ball appears for trial, he may be committed. |