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for an assault and battery, before a court of special sessions, a former trial and sentence cannot be given in evidence under a plea of not guilty. Under the plea of not guilty, the defendant can only give in evidence whatever negatives the allegation in the complaint, and matters of excuse or justification, and where, after pleading not guilty, anything occurs available as a defence, the defendant can only avail himself of it by a subsequent plea.1

§ 32. TRIAL WITHOUT JURY.

If the defendant plead not guilty, and no jury be demanded by him, the said court shall proceed to try such issue, and to determine the same according to the evidence which may be produced against and in behalf of such defendant."

§ 33. WHEN JURY TRIAL TO BE HAD.

After the joining of such issue, and before the court shall proceed to an investigation upon the merits of the cause by the hearing of any testimony, the defendant may demand of such court that he be tried by a jury; upon such demand the court shall issue a venire, directed to any constable of the county or marshal of the city where the offence is to be tried, commanding him to summon twelve good and lawful men, qualified to serve as jurors and not exempt from service by law, and who shall be in no wise of kin either to the complainant or the defendant, to be and appear before such court, at a time not more than three days from the date of the venire, and at a place to be named therein, to make a jury for the trial of such offence.3

The several questions in relation to the qualification of jurors, the grounds of exemption from jury service, and of challenges to jurors, together with the method and manner of exercising the right of such challenge, are the same in these courts as in courts of record; except that in courts of special sessions the defendant's right of peremptory challenge extends to only two of the persons drawn as jurors. They will be found discussed in full in the subsequent chapter, concerning the trial of indictments in courts of record. To render a conviction before a court of

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special sessions valid, it is not necessary that the court should inform the prisoner of his right to be tried by a jury or that he should expressly waive such right.1 The defendant's right to a jury trial in a court of special sessions may be waived, by agreement, at any time before judgment and he be tried by the magistrate.2

§ 34. SUMMONING THE JURY.

The officer to whom such venire shall be delivered shall execute the same fairly and impartially, and shall not summon any person whom he shall suspect to be biased or prejudiced for or against the defendant. He shall summon the jurors personally, and shall make a list of the persons summoned, which he shall certify and annex to the venire, and return with it to the court."

§ 35. IMPANNELING THE JURY.

The names of the persons so returned, shall be respectively written on several and distinct pieces of paper, as nearly of one size as may be, and the officer by whom the venire was served, in the presence of the court, shall roll up or fold such pieces of paper as nearly as may be, in the same manner, and put them together in a box or other convenient thing. The court shall then draw out six of such papers, one after another, and if any of the persons whose names shall be so drawn shall not appear, or appearing shall be challenged and set aside, then such further number shall be drawn as will be sufficient to make up the number of six after all legal causes of challenge shall have been allowed. If a sufficient number of competent jurors shall not be drawn, the court may supply the deficiency by directing the constable to summon any of the bystanders or others, who may be competent, and against whom no cause of challenge shall appear, to act as jurors in the cause.1

The Special Sessions has no authority to try a person by a jury of less than six, though he and the prosecutor consent thereto, and the proceedings upon such trial are void; consent cannot create a tribunal.5

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§ 36. NEW VENIRE.

If the officer to whom the venire shall have been delivered, shall not return the same as thereby required, the court shall issue a new venire, upon which the same proceeding shall be had as above provided, in respect to the first venire.1

A Court of Special Sessions has the power, and it is their duty, to issue a second venire for the jury to try the defendant, if the first jury are discharged because they cannot agree upon a verdict.2

§ 37. OATH TO JURORS.

To each juror the court shall administer the following oath or affirmation: "You do swear in the presence of Almighty God (or, "you do solemnly affirm," as the case may, be), that you will well and truly try this traverse between the People of the State of New York and, the defendant, and a true verdict give according to the evidence, unless discharged by the court."

§ 38. OF THE WITNESSES.

The magistrate having authority to examine into the nature and circumstances of a criminal charge against an offender, has also power, as incident to his authority, to bring before him all persons who appear, from the oath of the complainant or from the magistrate's own knowledge, to be material witnesses for the prosecution. And upon the reasonable request of the defendant, he has a similar power to bring before him any witness who may be able to give material evidence in his behalf.5

The attendance of the witnesses is to be compelled in the same manner as in other cases by subpoena and attachment. All subpœnas issued should be indorsed by the magistrate, showing whether the same were issued for the people or the prisoner.

Any justice of the peace or alderman is authorized by statute to issue subpoenas to compel the attendance of witnesses before a court of special sessions, and upon the trial before such court

1 2 R. S., 713, § 14.

• Vanderwerker v. Peo., 5 Wend., 530.

2 R. S., 713, § 15.

1 Chit. Or. L., 76.

Id.; 3 Inst., 79; 4 Bla. Com., 359.

2 R. S., 710, § 40.

the person composing the same may administer the oath required by law to such witnesses.1

In case any person summoned to appear before any court of special sessions as a juror or witness shall fail to appear, he shall be liable to the like penalties, and may be proceeded against in like manner as provided by law in respect to jurors and witnesses in justices' courts. No fees shall be allowed to or taken by any juror or witness for any services, under the provisions of the statute mentioned in this chapter.2

The provisions of the statute in relation to compelling the attendance of witnesses in justices' courts, above referred to, are as follows: "Whenever it shall appear to the satisfaction of the justice, by proof made before him, that any person duly subpœnaed to appear before him in any cause, shall have refused or neglected, without just cause, to attend as a witness in conformity to such subpoena, and the party in whose behalf such witness shall have been subpoenaed shall make oath that the testimony of such witness is material, the justice shall have power to issue an attachment to compel the attendance of such witness."3

The proof above mentioned may be made by the affidavit of the party in the suit applying for such attachment, or by other competent testimony to the satisfaction of the justice before whom such suit is pending. The affidavit need not be an oath in writing, according to the strict and technical sense of that word. The application for the attachment and the oath in support of it may be oral."

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The attachment is to be executed in the same manner as a warrant. Every person, duly subpoenaed as a witness, who shall not appear or appearing shall refuse to testify, shall forfeit for the use of the poor of the town, for every such non-appearance or refusal (unless some reasonable cause or excuse shall be shown on his oath or the oath of some other person), such fine, not less than sixty-two cents nor more than ten dollars, as the justice, before whom prosecution therefor shall be had, shall think reason

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able to impose; such fine may be imposed if the witness be present and have an opportunity of being heard against the imposition thereof.

The justice, imposing any fine, shall make up and enter in his docket a minute of the conviction and of the cause thereof, and the same shall be deemed a judgment in all respects at the suit of the overseers of the poor of the town. The justice is authorized, upon the imposition of such fine and in default of payment thereof, to issue an execution against the goods and chattels of the delinquent to any constable of the county, and for want thereof to convey him to the jail of the county, there to remain until he shall pay such fine and costs; but such imprisonment is not to exceed thirty days.1

§ 39. PROOFS TO THE JURY AND THEIR DELIBERATION.

After the jury shall have been sworn, they shall sit together and hear the proofs and allegations in the case, which shall be delivered in public, and in the presence of the defendant. After hearing such proofs and allegations, the jury shall be kept together in some convenient place until they agree on a verdict or are discharged by the court, and a constable or marshal shall be sworn in like manner, as upon trials in justices' courts.2

The following is the form of the oath to the officer: "You swear in the presence of Almighty God that you will, to the utmost of your ability, keep the persons sworn as jurors on this trial together in some private and convenient place, without any meat or drink, except such as shall be ordered by me; that you will not suffer any communication, orally or otherwise, to be made to them; that you will not communicate with them yourself, orally or otherwise, unless by my order, or to ask them whether they have agreed on their verdict, until they shall be discharged; and that you will not, before they render their verdict, communicate to any person the state of their deliberations, or the verdict they have agreed on."3

The jury should always be put in charge of a constable, sworn to attend them, unless they find a verdict on the spot, without

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