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as jurors upon the trial of the indictment, are unprejudiced and their judgment unbiased.

The application is made upon motion in the usual manner, by affidavits, but the venue will not be changed in a criminal case upon affidavits expressing mere belief that the prisoner cannot obtain a fair and impartial trial in the county where the indictment was found, but the affidavits must set forth the facts and circumstances so that the court may judge whether the applica tion is well founded; and the allegation that a fair and impartial trial cannot be had, must be clearly established, or the venue will not be changed.'

The venue in a criminal case may be changed on the motion of the district attorney as well as the defendant, if it appears that a fair and impartial trial cannot be had in the county where the indictment was found. There is no fixed rule defining what shall or shall not be received as proof of the fact that such trial cannot be had, and the venue may be changed, though there has been no actual experiment made by way of trying the cause, or even empanneling the jury in the county where the venue is laid.3

Where the indictment is against several persons, and enough is shown on the part of the prosecution to make a change of the place of trial proper as to one defendant, the change will be made as to all the defendants, although it is a case in which every defendant is entitled to a separate trial.1

And where it appears in opposition to such application that the defendant's witnesses are poor, and unable to bear the expenses of a journey to another county, and that the defendants are also destitute of property, the court may require as a condition to changing the place of trial, that the district attorney procure some arrangement to be made by which the county in which the indictment was found, shall pay the necessary expenses of the indigent witnesses subpoenaed on behalf of the defendants, and attending at any court in which the trial shall not be postponed at their instance.5

That a fair and impartial trial, by any means within the reach of the law, cannot be had in the county where the venue was

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laid, is a sufficient reason for changing the place of trial in a criminal case. In deciding upon such application the court should be governed by the facts shown, and not by the mere impressions or conclusions of the parties and witnesses, and it is not indispensable, to a change of venue in a criminal case, that there should have been an ineffectual attempt to obtain a jury in the county where the venue was laid.1

Formerly, in order to make a motion to change the venue upon the trial of an indictment, it was necessary, as a preliminary matter, to remove the indictment from the court where it was pending into the Supreme Court, by a writ of certiorari; the statute declaring that the indictment should be tried in the county where found, unless for special causes the Supreme Court should order an indictment removed into that court to be tried in some other county; 3 in which case the Supreme Court, at a special term thereof, had power to order the trial to be had in some other county. But by a late statute, courts of oyer and terminer have the same power, to change the place of trial upon any indictment pending therein, as the Supreme Court now has to change the place of trial in civil actions, and when the place of trial shall be so changed the indictment shall be deemed to be pending in the court of oyer and terminer of the county to which the place of trial has been so changed, and such court may proceed to try the same and render judgment thereon.5

If the indictment should be pending in the court of sessions and triable therein, a preliminary motion should be made to send the same to the next court of oyer and terminer to be held in the county, for the purpose of making the application in the oyer and terminer to change the venue," and in case the court of sessions should refuse such application then an application should be made to a Supreme Court justice to remove the indictment into the oyer and terminer by order," and the motion to change the venue, be made in said last mentioned court.

' Peo. v. L. I. R. R., 4 Park., 602.

• Vide ante.

3

2 R. S., 733, § 1; Peo. v. Barker, 3 Park, 181; 1 Hill, 179; 7 Hill, 147; Peo. v. Rulloff, 3 Park, 401.

Peo. v. Barker, 3 Park, 181.

Laws 1859, ch. 462, p. 1074.

2 R. S., 209, §§ 6, 7.

↑ Ante.

Ordinarily, where the place of trial is changed, an adjoining county should be selected; but there is no express limitation, and if the necessity which should require any change should call for a more remote county, that should be selected.1

Where a prosecution for crime is transferred from the county where the venue is laid to another county, the expenses of the trial of the indictment shall be a charge upon the county from which the same was transferred.*

In indictments for a libel a special provision of the statute exists, by which the defendant may in all cases claim the right by motion to the Supreme Court in the district where he resides, to be tried in the county where the libel was printed, on executing a bond to the complainant in the penal sum of not less than two hundred and fifty nor more than one thousand dollars, in the discretion of the court, conditioned, in case the defendant be convicted, for the payment of all the complainant's reasonable and necessary travelling expenses, incurred in going to and from his place of residence and the place of trial, and the necessary expenses in attendance on the trial in the prosecution of the defendant; such bond is to be signed by two sufficient sureties, to be approved by any judge of any court of record exercising criminal jurisdiction.

It is further provided that nothing in the above act shall abridge, or in any manner affect the right or power of any competent court to change the place of trial of indictments for libel in the manner now provided by law.3

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SECTION III.

OF THE PROCEEDINGS FROM AND INCLUDING THE TRIAL, DOWN TO AND INCLUDING THE VERDICT.

Section

LXXXV.-OF THE TRIAL OF THE INDICTMENT.

LXXXVI.-CERTAIN PROVISIONS IN CIVIL CASES ADOPTED ON THE TRIAL OF THE

INDICTMENT.

LXXXVII.-DEFENDANT TO BE PRESENT AT TRIAL.

LXXXVIII.-OF SEPARATE TRIALS BY DEFENDANTS JOINTLY INDICTED.
LXXXIX.-PROCEEDINGS WHEN PRISONER IS INSANE AT THE TRIAL.

LXXXX.-OF THE RIGHT OF TRIAL BY JURY.

LXXXXI.-OF THE RETURN AND SUMMONING OF JURORS.

LXXXXII. OF THE QUALIFICATIONS OF JURORS, AND DISCHARGING AND EXCUSING

THEM FROM JURY DUTY.

LXXXXIII.-CLERK'S ADDRESS TO PRISONER BEFore calling the JURY.
LXXXXIV. OF CHALLENGES TO THE JURORS.

LXXXXV. OF THE KINDS OF CHALLENGE ALLOWED TO THE PEOPLE.
LXXXXVI.-OF THE KINDS OF CHALLENGE ALLOWED TO THE PRISONER.
LXXXXVII.-OF CHALLENGES TO THE ARRAY.
LXXXXVIII.-OF CHALLENGE TO THE POLLS.

1. PROPTER HONORIS RESPECTUM.

2. PROPTER DEFECTUM.

a. ALIENAGE.

b. PROPERTY QUALIFICATION.

c. PROPERTY QUALIFICATION IN CERTAIN COUNTIES.

d. WANT OF MENTAL CAPACITY, ETC.

e. OTHER STATUTORY DISQUALIFICATIONS.

3. PROPTER AFFECTUM.

a. BIAS ON THE JUROR'S MIND, ON THE QUESTION WHETHER

OR NOT THE PRISONER IS GUILTY.

b. BIAS WHICH COMES FROM RELATIONSHIP.

C. THAT THE JUROR HAS A PECUNIARY OR OTHER INTEREST IN

THE EVENT OF THE ACTION.

d. THAT THE JUROR HAS PASSED UPON THE SAME QUESTION WHILE SERVING IN SOME OTHER CAPACITY.

4. BIAS FROM PARTICULAR OPINIONS CONCERNING THE LAW.

f. SOCIAL AND CIVIL CONNECTIONS.

g. A GENERAL BIAS AGAINST THE PRISONER.

4. PROPTER DELICTUM.

LXXXXIX.-CHALLENGES, WHEN MADE.

C.-CHALLENGES, HOW MADE.

1. TO THE ARRAY.

2. THE CHALLENGE TO THE POLLS.

CI.-CHALLENGE TO THE ARRAY, HOW DISPOSED OF.

CII.-CHALLENGE TO THE POLLS, HOW DISPOSED OF.

CIII.-OF THE SUMMONING OF TALESMEN AS PETIT JURORS.

CIV.-SWEARING THE JURORS.

CV.-ORDERING WITNESSES TO WITHDRAW.

CVI.-COMPELLING THE DISTRICT ATTORNEY TO ELECT ON WHICH OF SEVERAL

COUNTS IN THE INDICTMENT HE WILL PROCEED.

CVII.-OF EXCEPTIONS BY THE DEFENDANT UPON THE TRIAL.

CVIII.-OPENING OF THE CASE BY THE DISTRICT ATTORNEY.

CIX. OF THE EXAMINATION OF THE WITNESSES FOR THE PROSECUTION.
CX.-DISCHARGING ONE OF SEVERAL DEFENDANTS.

CXI.-OF THE OPENING OF THE CASE BY THE DEFENCE, AND THE WITNESSES
FOR THE PRISONER, AND OF WITNESSES IN REPLY.
CXII. THE ADDRESSES TO THE JURY BY THE COUNSEL.
CXIII. OF THE ADJOURNMENT OF COURT DURING THE TRIAL.
CXIV. OF THE SEPARATION OF THE JURY DURING THE TRIAL.
CXV-THE JUDGE'S CHARGE TO THE JURY.

CXVI. THE DELIBERATIONS OF THE JURY.
CXVII.-RETIREMENT OF THE JURY.

Section

CXVIII.-OF DISCHARGING THE JURY IN CASE OF THEIR INABILITY TO AGREE.
CXIX.-RENDITION OF THE VERDICT.

CXX.-OF THE VERDICT.

CXXI.-VERDICT ON SEVERAL COUNTS OF THE INDICTMENT.

CXXII-VERDICT AGAINST ONE OF SEVERAL DEFENDANTS.

CXXIII.-VERDICT FOR A LESS OFFENCE THAN IS CHARGED.

CXXIV. VERDICT SHALL NOT BE FOR AN ATTEMPT, WHEN OFFENCE IS PERPE
TRATED.

CXXV.-SPECIAL VERDICT.

CXXVI. POLLING THE JURY.

CXXVII.-MOTION IN ARREST OF JUDGMENT.

§ 85. OF THE TRIAL OF THE INDICTMENT.

Having already treated of the proceedings had in the court anterior to the arrest and arraignment of the defendant, and of the subsequent proceedings had after indictment duly found by the grand jury and presented to the court, we have now arrived at a stage of the proceedings where the defendant is put upon his trial before a petit jury. All issues of fact are to be tried by a jury in the county where the indictment was found, unless, for special causes, the indictment is removed for trial into some other county.1

We shall, in the following pages, treat of the various proceedings which may be taken by either party from the time the defendant is placed upon his trial down to the sentence and judgment of the court. We shall first treat of the organization and empanneling of the jury and subsequently of the action of the counsel for the respective parties and of the court and jury during the trial. It is not within the intention of the author to point out all the irregularities and errors which may be committed during the trial, but simply to mark out the course of practice to be adopted upon the trial. Such irregularities and errors which have been cited in the books as constituting sufficient grounds for a new trial, are too numerous to be embraced in a work of this kind, and are in themselves, if fully discussed, sufficient to comprise a separate work.

§ 86. CERTAIN PROVISIONS IN CIVIL CASES ADOPTED ON THE TRIAL OF

INDICTMENTS.

The proceedings prescribed by law in civil cases, in respect to the empanneling of juries, the keeping them together, and the manner of rendering their verdict, are to be had upon trials of indictments, and the provisions of law in civil cases relative to 1 2 R. S., 733, § 1, See ante.

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