§ 441. Special verdict, how brought to argument. The special verdict may be brought to argument by either party, upon five days' notice to the other, at the same or another term of the court; and upon the hearing thereof, the counsel for the defendant may conclude the argument. § 442. Judgment thereon. The court must give judgment upon the special verdict as follows: 1. 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, under that indictment, as provided in sections 444 and 445, judgment must be given accordingly; but if otherwise, judgment of acquittal must be given; 2. If the plea be a former conviction or acquittal of the same offense, the court must give judgment of conviction or acquittal, according as the facts prove or fail to prove the former conviction or acquittal. Former acquittal. People v. Burch, 1 N. Y. St. Rep. 751; 5 N. Y. Cr. Rep. 29. People v. McClure, 148 N. Y. 95. See People v. Trimble, 131 N. Y. 118, affg. 60 Hun, 364; People v. Connor, 8 N. Y. Cr. Rep. 439; 65 Hun, 392, affd., 142 N. Y. 130. 443. 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. See § 390, ante. See also Penal Code, § 10 and 35. General verdict. People v. Taylor, 3 N. Y. Cr. Rep. 297. Assault. People v. Sullivan, 4 N. Y. Cr. Rep. 193; People v. Palmer, 43 Burglary. People v. Meegan, 104 N. Y. 529; People v. Lawton, 56 Barb. 126; People v. Snyder, 2 Parker, 23. Murder. People v. Willson, 109 N. Y. 345; People v. Thompson, 41 N. Y. 1; McNevins v. People, 61 Barb. 307. Assault not included in murder. People v. McDonald, 159 N. Y. 309. Manslaughter. People v. McDonald, 49 Hun, 67; People v. Downs, 56 Hun, 5, affd., 123 N. Y. 558. Degree can not be less than that shown by the evidence. People v. Blakeman, 34 N. Y. Supp. 262; 68 N. Y. St. Rep. 140. Arson. People v. Didien, 17 How. Pr. Rep. 224. 444. Upon indictment for crime consisting of different degrees, jury may convict of any degree, or of any attempt to commit the crime. Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime. Upon a trial for murder or manslaughter, if the act complained of is not proven to be the cause of death, the defendant may be convicted of assault in any degree constituted by said act, and warranted by the evidence. A conviction upon a charge of assault is not a bar to a subsequent prosecution for manslaughter or murder, if the person assaulted dies after the conviction, in case death results from the injury caused by the assault. Am'd L. 1900, ch. 625. People v. Austin, 63 App. Div. 382; People v. Cox, 67 App. Div. 344; People v. Wheeler, 79 App. Div. 396; People v. Young, 96 App. Div. 33; People v. Schiavi, 96 App. Div. 479; People v. Huson, 114 App. Div. 693. § 445. In other cases, jury may convict of any offense necessarily included in that charge. In all other cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment. Indicted for grand, convicted of petit larceny. People v. McTameney, 1 N. Y. Cr. Rep. 437; 13 Abb. N. C. 55; 30 Hun, 505. Assault. People v. Palmer, 43 Hun, 397; 5 N. Y. Cr. Rep. 101; People ex rel. Young v. Stout, 81 Hun, 336. Burglary. People v. Meegan, 104 N. Y. 529. Larceny. People v. Kennedy, 57 Hun, 532. Manslaughter. People v. McDonald, 49 Hun, 67; People v. Dowling, 1 N. Y. Cr. Rep. 529. Misdemeanor. People v. Jackson, 3 Hill, 92. 446. On indictment against several, jury may render a verdict as to some, and the cause be again tried as to the others. On an indictment against one or more, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly; and the case, as to the rest, may be tried by another jury. § 447. In what cases court may direct a reconsideration of the verdict. When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict; and if, after the reconsideration, they return the same verdict, it must be entered. But when there is a verdict of acquittal, the court cannot require the jury to reconsider it. § 448. Id. If the jury render a verdict which is neither a general nor a special verdict, as defined in sections 437 and 438, the court may, with proper instructions as to the law, direct them to reconsider it; and it cannot be recorded until it be rendered in some form, from which it can be clearly understood what is the intent of the jury, whether to render a general verdict, or to find the facts specially, and leave the judgment to the court. 449. When judgment may be given upon an informal verdict. If the jury persist in finding an informal verdict, from which, however, it can be clearly understood, that their intention is to find in favor of the defendant, upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given, unless the jury expressly find against the defendant, upon the issue, or judgment be given against him on a special verdict. Former acquittal. People v. Burch, 1 N. Y. St. Rep. 751; 5 N. Y. Cr. Rep. 29. § 450. Polling the jury. When a verdict is rendered, and before it is recorded, the jury may be polled, on the requirement of either party; in which case they must be severally asked whether it is their verdict; and if any one answer in the negative, the jury must be sent out for further deliberation. Leighton v. People, 10 Abb. N. C. 261, affd., 88 N. Y. 117. 451. Recording the verdict. When the verdict is given, and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement be expressed, the verdict is complete, and the jury must be discharged from the case. 452. Defendant, when to be discharged or detained after acquittal. If judgment of acquittal be given on a general verdict, and the defendant be not detained for any other legal cause, he must be discharged as soon as the judgment is given; except that when the acquittal is for a variance between the proof and the indictment, which may be obviated by a new indictment, the court may order his detention, to the end that a new indictment may be preferred, in the same manner and with the like effect as provided in sections 408 and 409. 453. Proceedings upon general verdict of conviction, or a special verdict. If a general verdict be rendered against the defendant, or a special verdict be given, he must be remanded, if in custody, or if on bail, he may be committed to the proper officer of the county, to await the judgment of the court upon the verdict. When committed, his bail is exonerated, or if money be deposited instead of bail, it must be refunded to the defendant. See People v. Trimble, 60 Hun, 364, affd., 131 N. Y. 118. 454. When defendant acquitted on the ground of Insanity, the fact to be stated with the verdict. Commitment of defendant to state lunatic asylum. When the defense is insanity of the defendant the jury must be instructed, if they acquit him on that ground, to state the fact with their verdict. The court must, thereupon, if the defendant be in custody, and they deem his discharge dangerous to the public peace or safety, order him to be committed to the state lunatic asylum, until he becomes sane. See People ex rel. Mooney v. Walsh, 21 Abb. N. C. 299; People v. Rice, 159 N. Y. 400. 139 456. Minutes of proceedings to be furnished defendant's attorney; charge on county. 457. To be settled at the trial, or the point noted in writing. 458, 459. Case when necessary, how made and settled. 460. Enlarging the time therefor. 461. Effect of not serving exceptions or amendments, within the time prescribed. § 455. In what cases. On the trial of an indictment, exceptions may be taken by the defendant, to a decision of the court, upon a matter of law, by which his substantial rights are prejudiced and not otherwise, in any of the following cases: 1. In disallowing a challenge to the panel of the jury; 2. In admitting or rejecting testimony on the trial of a challenge for actual bias to any juror who participated in the verdict, or in allowing or disallowing such challenge; 3. In admitting or rejecting witnesses or testimony, or in deciding any question of law, not a matter of discretion, or in charging or instructing the jury upon the law, on the trial of the issue. People v. Welch, 1 N. Y. Cr. Rep. 486; People v. Petrea, 30 Hun, 98; 1 N. Y. Cr. Rep. 198, affd., 92 N. Y. 128; 1 N. Y. Cr. Rep. 233; People v. McGonegal, 136 N. Y. 62; People v. Lungite, 31 Abb. N. C. 419; 30 N. Y. Supp. 272. Subd. 2. People v. Willett, 36 Hun, 500; 3 N. Y. Cr. Rep. 324; People v. Tyrrell, 3 N. Y. Cr. Rep. 142; People v. Pemecky, 2 N. Y. Cr. Rep. 450, affd., 99 N. Y. 415; People v. McQuade, 110 N. Y. 284; 21 Abb. N. C. 417. Subd. 3. People v. Palmer, 109 N. Y. 413; People v. Flaherty, 27 App. Div. 535; Walker v. People, 1 N. Y. Cr. Rep. 7; Berry v. People, 1 N. Y. Cr. Rep. 43. § 456. Minutes of proceedings to be furnished defendant's attorney; charge on county. Where the defendant is convicted of a crime punishable by death, the stenographer, within ten days after the judgment has been pronounced, shall furnish to the attorney for the defendant, at his request, a copy of the stenographic minutes of the entire proceedings upon the trial. The expense of such copy shall be a county charge, payable to the stenographer out of |