IL 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. 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 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 indict ment. 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. SECTION 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. See 3 R. S., 1029, § 19. (a) Must state facts to be proved only. - Counsel will not be allowed to state facts in his opening which cannot be given in evidence to the jury. (People v. Hetteck, 1 Wh. C. Cas., 399.) (b) The court must control. The jury are bound by the instructions of the court as to the law, to the same extent as in civil cases. (Duffy v. People, 26 N. Y., 588; 5 Park., 321.) (c) Court cannot withdraw juror. — After a prisoner has been put upon his trial, the judge has no power to withdraw a juror without the prisoner's consent, merely because the public prosecutor is unprepared with his evidence. (People v. Barrett, 2 Caines, 304; Grant v. People, 4 Park, 527.) (d) Effect of withdrawing juror. — On a trial for felony, if the public prosecutor withdraw a juror, without any improper practice on the part of the defendant, he cannot be again put on trial for the same offense. (Klock v. People, 2 Park., 676.) 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 a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. New. $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. § 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. 2 R. S., 1030, § 35. (a) Separate trials. Where four are jointly indicted, three of them cannot insist upon the fourth being tried with them. (Armsby v. People, 2 S. C., 157; Kelly v. People, 55 N. Y., 565.) (b) Order of trial. — The district attorney will determine the order of separate trials. (Patterson v. People, 46 Barb., 625.) (e) May be convicted of different degrees. Persons jointly indicted for an offense arising out of the same transaction, may be convicted of different degrees of the same crime. (Klein v. People, 31 N. Y., 229; White v. People, 32 id., 165.) (d) Id. Persons jointly indicted may be found guilty of different grades of the offense charged. (People v. White, 55 Barb., 606.) (e) May demand separate trial. - Where two or more persons are jointly indicted for a felony, either is absolutely entitled to a separate trial if he demands it. (Babcock v. People, 15 Hun, 347.) §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. 3 R. S., 1029, § 19. § 393. Defendant as witness. The defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him. 3 R. S., 1032, § 43; Laws 1869, ch. 678. (a) Cross-examination. — Where, upon a criminal trial, the accused is offered as a witness in his own behalf, to entitle the prosecution to put to him questions on a cross-examination, which are irrelevant to the issue, and calculated to prejudice him with the jury, they must be at least such as tend to impeach his character and credibility. (People v. Crapo, 76 N. Y., 288; People v. Casey, 72 N. Y., 394.) (b) Under same rules of evidence. Where, upon a criminal trial, the prisoner offers himself as a witness, he is subject to the same rules, upon cross-examination, as other witnesses. (People v. Casey, 72 N. Y., 394.) (c) Credibility of prisoner. — The extent to which an examination may go to test the witnesses credibility is largely in the discretion of the court. (Id.) (d) Failure to testify. If the prisoner elect to testify in his own behalf, his failure to explain a fact tending to prove his guilt raises a presumption against him. (Stover v. People, 56 N Y., 315.) (e) Amount of credibility of prisoner.- Where a prisoner is examined in his own bebalf, the credit to which he is entitled is for the jury. (Newman v. People, 63 Barb., 630; People v. Brandon, 42 N. Y., 265; Connors v. People, 50 N. Y., 240; People v. Moett, 23 Hun, 60.) (f) Jury may regard prisoner's refusal.- When the jury may consider the refusal of the prisoner to testify before the coroner. (People v. Moett, 23 Hun, 454.) (g) Bad character shown affects credibility only.- Where the accused is examined as a witness in his own behalf, and the prosecution gives evidence of his bad character, such evidence only goes to the question of his credit as a witness, and not to that of his guilt or innocence. (Adams v. People, 9 Hun, 89.) § 394. Compensation of witness. The rules as to the compensation of witnesses attending trials in criminal cases, prescribed by special statutes, are continued as there defined. 3 R. S., 1024, § 69; Id., 1054, §§ 30, 31, et seq. § 395. Confession of defendant, when evidence, and its effect. A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed. New. (a) Statement after crime admissible. What the prisoner said at any time after the commission of the crime is competent evidence against him. (Fralich v. People, 65 Barb., 48.) (b) Silence of prisoner, effect of.- Evidence that a prisoner remained silent when charged with the commission of a crime is admissible. (Kelly v. People, 55 N. Y., 565; McGuire v. People, 3 Hun, 213; 5 S. C.. 682.), (c) Confession of marriage in bigamy.- in a prosecution for bigamy, the confession of the defendant is not sufficient proof of the first marriage. (People v. Humphrey, 7 Johns., 314.) (d) In blasphemy.- A prisoner cannot be convicted of blasphemy on his own confession made out of court. (People v. Porter, 2 Park., 14.) (e) In misdemeanor.- A voluntary confession in a case of misdemeanor reduced to writing before the magistrate may be read in court as evidence. (Steel's case, 5 C. H. Rec., 5.) (ƒ) Confession of one not evidence against another.- Where two are jointly tried for a felony, the statement made by one of them before the magistrate is not evidence against the other. (Hopkins' case, 1 C. H. Rec., 173.) Nor can it be used for the other. (4 id., 140.) (g) Parol confession may be proved.- A confession not reduced to writing may be proved by the magistrate. (Collins' case, 4 C. H. Rec., 139; McKenna's case, 5 id., 174.) (h) Statement made when not under arrest admissible. On a trial for murder, statements made by the prisoner, as a witness before the coroner, before he had been charged with the crime, and before it was ascertained that a murder had been committed, are evidence against him. (Hendrickson v. People, 10 N. Y., 9; 1 Park., 396, 400; 8 How., 404; People v. Thayer, 1 Park., 595; People v. McCraney, 6 id., 49.) (i) When suspected. Also, even if he knew he was suspected and would be arrested. (Teachout v. People, 41 N. Y., 7; People v. Montgomery, 13 Abb. [N. S.], 207.) (j) When not admissible. — If a prisoner, arrested without warrant, on suspicion of murder, be examined on oath before the coroner as a witness, his testimony thus given is not admissible on his trial. (People v. McMahon, 15 N. Y., 384.) (k) Custody of prisoner excludes. - The mere fact of a prisoner being in custody not sufficient to exclude admissions, if neither threats, promises nor inducements were held out to him. (People v. Rogers, 18 N. Y., 9.) (7) Lawful arrest, effect of. A lawful arrest is not such duress as will avoid a confession. (People v. McAllister, 1 Wh. Cr. Cas., 392.) (m) Evidence of confession - Evidence of a confession, if voluntary, not excluded because he was under arrest simply. (Hartung v. People, 4 Park., 319; O'Brien v. People, 48 Barb., 274.) (n) Voluntary confession. If a confession be wholly voluntary it is admissible though made to a police officer. (People v. Wentz, 37 N. Y., 303.) (0) Confession on promise. A confession to a magistrate who told the prisoner it would be better for him to make a full confession, not admissible. (People v. Ward, 15 Wend., 231; People v. Phillips, 42 N. Y., 200; 57 Barb., 353.) (p) Previous promise. A confession made under the influence of a previous promise not evidence. (Thorn's case, 4 C. H. Rec., 81; Boverhans' case, Id., 136; Stage's case, 5 id., 177; People v. Robertson, 1 Wh. C. C., 66.) (7) Confession on threats. If a prisoner under the influence of threats, make a confession which he repeats on the following day to the police magis |