possess the power to grant a new trial on motion of the prisoner, after conviction, before or after sentence, on exceptions taken on the trial, or on the ground of newly discovered evidence. The motion may be heard on the minutes or on affidavits, as the case may require, in like manner, as nearly as may be, to the practice of the supreme court in civil actions. (3 R. S., 7th ed., 2571.) (24) Whether this statute is superseded by Code of Cr. Pro., § 463 ? Quære. [ *363 ] *Inferior courts, as courts of sessions, have no power to grant new trials upon the merits. (¿) (25) But they may for irregularity. (k) It has been decided that the oyer and terminer is not a superior court of general jurisdiction; and that it has no power to grant a new trial, on the merits, after the defendant has been convicted of a felony. (1) A new trial may be granted for they are not duly returned; (m) or (i) 1 Chit. Cr. L., 653. 2 Caine's Cas, in Err., 319. S. C., 1 John. Cas., 179. 15 Wend., 581. 1 Park., 369. (k) 13 East, 416. 1 Chit. Cr. L., 653. 12 Wend., 272. want of a proper jury, as where for the misbehavior of the jury, (1) 2 Barb., 282; 20 N. Y., 531; 13 Ab. Pr. [N. S.], 207. Sce 32 N. Y., 315. (m) 1 Chit. Cr. L., 655. (24) COURTS AUTHORIZED TO GRANT NEW TRIALS: The following courts are, by the Code of Criminal Procedure, authorized to grant new trials: 1. Courts of oyer and terminer, "in all cases tried therein." (§ 22, suh. 7.) 2. Courts of sessions in counties other than New York and Kings, “in all cases tried therein." (§ 39, sub. 14.) 3. Court of general sessions in the city and county of New York, and court of sessions in the county of Kings. (§ 51.) 4. Superior court of Buffalo. (§ 28, sub. 4.) 5. City court of Brooklyn. (§ 26.) See Laws of 1849 (ch. 125, § 11), as amended by Laws of 1870 (ch. 470); 3 R. S., 7th ed., 2362. (25) The act of 1855 (ch. 337, § 2) declares that all the provisions of law now existing, relating to courts of oyer and terminer, and regulating trials of indictments for capital offenses and for offenses punishable by imprisonment in the state prison for life, and regarding sentences thereupon, and writs of error, bills of exceptions, certioraris and writs of habeas corpus, arising upon trials of such indictments, are thereby applied to the court of general sessions in the city and county of New York. (3 R. S., 7th ed., 2381.) It has been held that that court has power to grant new trials, on the merits. (People v. Powell, 14 Ab. Pr., 91; Lanergan v. People, 39 N. Y., 39.) The provisions of the act of 1855 (ch. 337), as amended by Laws of 1858 (ch. 330), which authorize an appellate court to grant a new trial in capital cases, when satisfied that the verdict is against the weight of evidence, etc., whether an exception was taken or not, in the court below, has no application to writs of error in counties of the state other than New York. (Buel v. People, 78 N. Y., 492.) Under the above act of 1876 (ch. 295), authorizing the granting of a new trial on motion of the prisoner after conviction, the court has no power to grant such a motion, for an alleged error, where no exception was taken, on the trial. (Id.) as if they cast lots for their verdict; (n) or refresh themselves at the cost of the prosecutor. (o) (26) But a new trial will not be granted on account of the incompetency of a juror ; (p) or for a trifling neglect of the clerk in drawing the jury, productive of no injury to the prisoner; (g) or because the judge declined to charge the jury, in a case where there was no dispute as to the law; (r) or upon the ground that further testimony to impeach the credibility of a witness has been discovered-his character having been testified to at the trial; (s) or because one of the witnesses has been discovered to be incompetent since the finding of the jury; () or has made a mistake in giving his evidence. (u) (27) (n) 12 Wend., 272. 12 Pick., 521. 1 Mass. R., 542, n. (0) 1 Str., 642. 2 Salk., 645. (p) 4 Yerg., 111. 1id., 206. But see 7 Dowl. & Ryl., 684. (q) 7 Wend., 417. See 3 Greenl., 77. (26) During the progress of a trial for murder, the defendant and his counsel discovered that one of the jurors was, apparently, asleep. They allowed the trial to proceed, without calling the attention of the court, or of the district attorney to the incident. Held that, under the circumstances, the fact of the juror being asleep, afforded no ground for granting a new trial. (People v. Morrisey, 1 Sheld., 295.) The fact that one of the jurors was over the age of sixty years, no objection having been made to him, constitutes no ground for granting a new trial. (Id.) During the deliberations of the jury, they became possessed of a copy of the Revised Statutes, in which the crime of murder was defined, and also of a newspaper, in which a report of the trial appeared, but containing no comments upon the case, or upon the character, or probable guilt or innocence of the prisoner. Held that a new trial should not be granted on account of these irregularities. (People v. Gaffney, 1 Sheld., 304.) A conviction will not be set aside and a new trial granted, for irregularity, when it is apparent that no injury has resulted to the prisoner from such irregularity. (Id.) A judgment against a prisoner will not be reversed for a technical error which did not affect the merits of the case to his predjudice; but if any error was committed on the trial, which materially affected the case to his predjudice, it is the duty of the court to grant a new trial; though there is no doubt of the prisoner's guilt, upon the evidence in the case. (Gardiner v. People, 6 Park., 155.) (27) If the defendant escape, after conviction, the court will not proceed to the settlement of a bill of exceptions whilst he is at large as a fugitive beyond the reach and control of the authorities of the state. (Matter of Genet, 1 Hun, 292; S. C., 3 T. & C., 734; 59 N. Y., 80; People v. Sharkey, 1 Hun, 300; S. C., 3 T. & C., 739.) A new trial can not be granted in an appellate court, on the merits, except such power is conferred by statute. (Eggler v. People, 3 T. & C., 796.) Nor will a new trial be granted because the district attorney by mistake, withholds papers in his hands, which are important to the defendant, unless the latter has used due diligence to obtain them. (People v. Vermilyea, 7 Cow., 369); nor on the ground that a co-defendant, tried at the same time and acquitted, was a material witness for the convicted defendant. (Id.) The separation of the jury, on the adjournment of a case tried before a court of special sessions, is no ground for a new trial, where no misbehavior is alleged. (Beebe v. People, 5 Hill, 32.) The separation of the jury in a capital case, is not per se ground for a new trial. (People v. Montgomery, 13 Ab. Pr. [N. S.], 207.) The case of Eastwood v. People (3 Park., 25), explained as turning upon the exceptions taken on the trial; not on the question of misbehavior; and the remarks on the latter point limited. (Íd.) It is not a ground for a new trial in a case of murder, that one of the jurors inquired of the constable in attendance whether they could not bring in a verdict of manslaughter, and that he gave his opinion; inasmuch 785 [ 50 ] But where material witnesses have been prevented by illness from attending, or gained credit on the trial by circumstances since falsified by affidavit, or are afterwards convicted of perjury or shown to be evidently forsworn, the court will, in some cases, allow a second investigation of the proceedings. The mere finding a bill for perjury, however, will not suffice, because it is grounded on ex parte 364] evidence; nor is it of course * to receive affidavits impeaching the credit of witnesses. (v) Another reason for granting a new trial may be the misdirection of the judge, or the refusal of legal, or the admission of improper evidence. (w) And it may be obtained on the ground that the verdict is without, or contrary to, evidence, if the judge himself expresses his dissatisfaction at the issue. (x) (28) ** (v) 1 Chit. Cr. L., 656. (w) 2 Salk., 649. 2 Wils., 273. Bull. N. P., 327. (x) 1 Burr., 12. 2 id., 665, 936. 2 Bailey, 29. as the prisoner could not possibly have been prejudiced thereby. (People v. Hartung, 4 Park., 256; S. C., 17 How. Pr., 85; Wilson v. People, 4 Park, 619; S. C., 8 Ab. Pr., 137.) Nor will a new trial be granted in a capital case merely because the jury read a newspaper report of the trial, but without any comments which could prejudice the prisoner. (People v. Gaffney, 14 Ab. Pr. [N. S.], 36.) Nor for a matter which occurred in the presence of the prisoner's counsel, and by which he could not have been prejudiced. (Wilson v. People, 4 Park., 619; S. C., 8 Ab. Pr., 137.) Nor because the judge, in charging the jury, laid down an erroneous proposition, if, on his attention being called thereto, by objection, he immediately corrected the misdirection, and laid down the correct rule. (Eggler v. People, 56 N. Y., 642.) (28) The Code of Criminal Procedure contains the following provisions respecting new trials: New trial.]-A new trial is a re-examination of the issue, in the same court, before another jury, after a verdict has been given. (§ 462.) When granted.]-A new trial can be granted by the court in which the former trial was had, only in the cases provided in section 465. (§ 463.) Effect of granting new trial.]-The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew; and the former verdict can not be used or referred to, either in evidence or in argument. (§ 464.) In what cases granted.]—The court in which a trial has been had upon an issue of fact has power to grant a new trial, when a verdict has been rendered against the defendant, by which his substantial rights have been prejudiced, upon his application, in the following cases: 1. When the trial has been had in his absence, if the indictment be for a felony; 2. When the jury has received any evidence out of court, other than that resulting from a view, as provided in section 411; 3. When the jury have separated without leave of the court, after Where the defendant has pleaded to an indictment in an inferior court, which is tried, but on certiorari to the supreme court a new trial is ordered, he need not, in strictness, plead de novo; for the old plea stands. (y) (29) (3) 7 Cowen, 108. retiring to deliberate upon their verdict, or have been guilty of any misconduct by which a fair and due consideration of the case has been prevented; 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors ; 5. When the court has misdirected the jury in a matter of law, or has refused to instruct them, as prescribed in section 420; and the defendant has, at the trial, excepted to such misdirection or refusal; 6. When the verdict is contrary to law or clearly against evidence; 7. When it is made to appear, by affidavit, that upon another trial, the defendant can produce evidence such as if before received would probably have changed the verdict; if such evidence has been discovered since the trial, is not cumulative; and the failure to produce it on the trial was not owing to want of diligence. (§ 465.) Application, when to be made.]-The application for new trial must be made before judgment, except in case of a sentence of death, when the application may be made at any time before execution, and in case the court before which the trial was had is not in session, so that the application can be made and determi ed before the execution, then the application may be made to any justice of the supreme court or special term thereof, within the judicial department where the conviction was had. (§ 466, as amended in 1882.) On appeal from a conviction.]-On appeal to the supreme court from a judgment of conviction, or other determination from which an appeal can be taken, the appellate court may order a new trial if it be satisfied that the verdict against the prisoner was against the weight of evidence, or against law, or that justice requires a new trial; whether any exception shall have been taken or not, in the court below. (§ 527, as amended in 1882.) In cases of reversal, the appellate court may, if necessary or proper, order a new trial. (§ 543.) When a new trial should not be ordered. (Foote v. Ætna Life Ins. Co., 61 N. Y., 571.) Proceedings on new trial.]-When a new trial is ordered, it shall proceed in all espects as if no trial had been had. (§ 544.) On appeal from court of special sessions, the appellate court may order a new trial. (§ 764.) If new trial ordered, to be had in court of sessions. Proceedings thereon.]—If a new trial be ordered, it must be had in the court of sessions, in the same manner as upon an issue of fact on an indictment; and that court may proceed to judgment and execution, as in an action prosecuted by indictment. (§ 768.) (29) PRACTICE AND PROCEEDINGS ON THE TRIAL. (Peo The order of proof, in each particular case, is in the discretion of the court. ple v. White, 55 Barb., 606.) Where the admissibility in evidence, of a letter, writ ten by the defendant to the district attorney, depends upon the question whether it was voluntarily written, or whether it was obtained by inducements, it is in the discretion of the court to say which side shall first give evidence on the question; and as it relates to the order of evidence, a decision upon it is not the subject of exception. (Gardiner v. People, 6 Park., 155.) Omission to produce evidence.]-The jury may consider the prisoner's omission to produce material evidence which must have been in his power. (Brulo v. People, 16 Hun, 119.) Directing verdict of guilty.]-The court has no power to direct a verdict of guilty, where the accused has put himself upon the county. (Howell v. People, 5 Hun, 620; aff'd 69 N. Y., 607.) Withdrawing juror.]—On the trial of an indictment for libel, a juror may be withdrawn, at the request of the defendant, and the case continued to the next term. (McFall v. People, 18 Hun, 382.) Threat of coercion.]—A statement, by the presiding judge, that if the jury do not agree before the adjournment, they will have to remain in their room over night, can not be construed into threat of coercion. (Berry v. People, 19 Alb. L. J., 336.) Doubtful questions.]-The rule that every reasonable doubt, upon a question of law or fact, bearing upon the guilt or innocence of the prisoner, is to be solved in his favor, does not apply to the question of the jurisdiction of the court. (Smith v. People, 47 N. Y., 330.) Directing acquittal.]-If the corpus delicti be not proved, the court may direct an acquittal; but they can not discharge the prisoner, without a verdict. (People v. Bennett, 49 N. Y., 330.) Insufficiency of evidence.]-If the evidence be clearly insufficient to justify a conviction, it is the right of the defendant to have the jury so instructed. (Reynolds v. People, 41 How., 179.) Further testimony.]—Whether, after the defense has rested, the prosecution shall be permitted to call a witness in support of previous testimony, is a matter of discretion, in the court, not reviewable on error. (Stephens v. People, 4 Park., 396.) The admission of further testimony, after the summing up has commenced, or after the case has been summed up, to the jury, also a matter of discretion, not reviewable on writ of error. (White v. People, 53 N. Y., 525; Kalle v. People, 4 Park., 591; Hadden v. People, 25 N. Y., 373; Wilkie v. People, 53 N. Y., 525.) No power is given to an appellate court to interfere with that discretion, by the act of 1855 (ch. 339, § 3), which authorizes an appellate court to interpose, if it shall be satisfied that the verdict against the prisoner is against the weight of evidence, or against the law, or that justice requires a new trial. (Wilkie v. People, supra.) That section, in any view, is applicable only to a conviction for a criminal offense, and to an offense where the minimum punishment is imprisonment for life. (Id.) Evidence of other offenses.]—If a prisoner, upon trial for one offense, calls out facts on cross-examination, without objection, tending to show that he is not guilty of another offense, this does not justify evidence, on the part of the prosecution, to prove that he is guilty of such other offense. (Coleman v. People, 55 N. Y., 81.) Charge and instructions of judge.]-The jury are bound by the instructions of the judge, as to the law, to the same extent as in civil cases. (Duffy v. People, 26 N. Y., 5SS; S. C., 5 Park., 321.) In a court of review, the charge of a judge, on the trial, should be interpreted in the light of the evidence, and in accordance with the ordinary and popular import of the language, as it would naturally be understood by the jury. (People v. Bransby, 32 N. Y., 525.) An erroneous instruction by the presiding judge will not authorize the reversal of a judgment, where it appears from the form of the finding, as matter of legal necessity, that the error did not affect the result, and wrought no actual prejudice to the party. (Id.) If the facts proved, upon a criminal trial, are capable of two constructions, or if, in one view of the evidence, a particular intent may be found, and yet the facts may justify the finding of an intent involving another degree of guilt, the court is bound, upon the request of the prisoner, to declare the rule of law applicable to the case in either aspect. (Foster v. People, 50 N. Y., 598.) A complaint that the charge of the court, upon a criminal trial, was not as dispassionate as it ought to be, if well founded, will not avail in the appellate court. If no legal error was committed, the judgment can not be reversed. (Boyce v. People, 55 N. Y., 644.) It is competent for the judge to express an opinion upon the weight of the evidence; provided it be not made binding upon the jury. (People v. Rathbun, 21 Wend., 509; Stephens v. People, 4 Park., 396; S. C., 19 N. Y., 549.) It is not error in the judge to comment on the facts, or even to give his own |