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compelling the attendance and testimony of witnesses, their exami. nation, the administration of oaths and affirmations, and proceedings as for contempts to enforce the remedies and protect the rights of parties, also extend to trials and other proceedings on indictments, so far as they may be, in their nature, applicable thereto, subject to the provisions contained in any statute.1

§ 87. DEFENDANT TO BE PRESENT AT TRIAL.

No person indicted for any felony can be tried unless he be personally present during such trial; nor can any personindicted for any other offence be tried unless he be present, either personally or by his attorney, duly authorized for that purpose; and every person indicted, shall be admitted to make any lawful proof by competent witnesses, on oath, or by other lawful testimony.2

The general authority of an attorney does not extend to the case above provided for; there must be given him before trial, a special authority and waiver.3

It is said to be a principle pervading the entire law of procedure in criminal causes, that after an indictment found, nothing shall be done in the causes in the absence of the prisoner.4

In felonies, the prisoner has not the power, either by himself or attorney, to waive the right to be personally present during the trial.5

§ 88. OF SEPARATE TRIALS BY DEFENDANTS JOINTLY INDICTED. At the common law it was not the right of the defendant, where jointly indicted with another, to demand.a separate trial, yet such favor lay in the discretion of the judge on cause being shown him, and the doctrine applied alike in cases of felony and misdemeanor. The Revised Statutes contain the following provision upon this subject:

When one or more defendants shall be jointly indicted for any felony, any one defendant requiring it shall be tried separately.

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Peo. v. Petry, 2 Hilton, 523; Peo. v. Wilkes, 5 How., 105.

1 Bish. on Cr. Pro., § 682.

Prine v. Com., Harris, Pa. 103-104.

1 Bish. Cr. Pro., § 959.

In other cases, defendants jointly indicted shall be tried separately or jointly, in the discretion of the court.1

Where two or more persons are jointly indicted for a felony, and demand separate trials, they have not a right to elect which defendant shall be tried first. The order of the trials in such case is within the control of the district attorney, subject to the direction of the court, and, as a general rule, the court should not interfere to compel the district attorney in regard to it.2

Whether defendants indicted jointly for a misdemeanor shall be allowed separate trials is in the discretion of the judge before whom the trial takes place.3

This discretion may be exercised by an order made on the motion of the district attorney, as well as on that of the prisoner's counsel. If, in the opinion of the district attorney, public justice requires a joint trial in misdemeanors, the court will not direct separate trials, except under very special circumstances. And if it seems best to consist with the advancement of justice, as if the district attorney is prepared to try one prisoner and has been unable to procure witnesses against the other defendant, and if compelled to try jointly, there is danger that the other will escape, the court may, in the exercise of its discretion, allow a separate trial on the motion of the public prosecutor.

Where defendants are tried jointly, and there is a challenge for cause to a juror by one defendant, it is plain that any disqualification of the juror to serve as against one of the prisoners, should require him to be rejected as to both, since in the nature of this service he could not sit for the trial of one without sitting also for the trial of the other.5

It also follows that if one of the prisoners challenges a juror peremptorily, and the other does not challenge him, he is equally to be removed from the panel."

Where separate trials are had, no one of the persons jointly indicted can be a witness for any other one until the case is disposed of either by nolle prosequi, acquittal or otherwise."

12 R. S., 735, § 22.

Peo. v. McIntyre, 1 Park., 371; Id., 9 N. Y. (5 Seld.), 38; 19 Wend., 377. ' Peo. v. Stockham, 1 Park., 424; 7 Cow., 369; Id., 108.

⚫ 1 Park., 424.

1 Bish. Cr. Pro., § 966.

Id.; 12 Wheat., 480; 4 Mason, 159, S. C.; 6 Ohio, 86; 4 Yerg., 246.
Peo. v. McIntyre, 4 Park., 371.

§ 89. PROCEEDINGS WHERE PRISONER IS INSANE AT THE TRIAL. The supreme court have said that the statute is explicit that no insane person can be tried; but it does not state in what manner the fact of insanity shall be ascertained. That is left as at common law, and, although in the discretion of the court, other modes than that of a trial by jury may be resorted to; still, in important cases, that is the most discreet and proper course to be adopted.1

Upon the trial of a preliminary issue of this kind the clerk administers the following oath to the jury:

"You shall diligently inquire and a true verdict return in behalf of the people of the State of New York, whether A B, the prisoner at the bar, who now stands indicted for (naming the offence), be of sane memory or not, according to your evidence and knowledge." 2

On such preliminary trial the defendant is not entitled to peremptory challenges, but challenges for cause may be made.3

The test of insanity, when set up to prevent a trial, is, whether the prisoner is mentally competent to make a rational defence, and when alleged as a defence to an indictment, it is whether, at the time of committing the act, he was laboring under such mental disease as not to know the nature and quality of the act he was doing or that it was wrong.4

There is, however, another statute which provides, that if any person in confinement under indictment, or under sentence of imprisonment, or under a criminal charge, or for want of bail for good behavior, or for keeping the peace, or for appearing as a witness, or in consequence of any summary conviction, or by order of any justice, or under any other than civil process, shall appear to be insane, the county judge of the county where he is confined shall institute a careful investigation, call two respectable physicians and other credible witnesses, invite the district attorney to aid in the examination, and, if he deem it necessary, call a jury, and for that purpose is fully empowered to compel

' Freeman v. Peo., 4 Den., 20; Steph. Cr. L., 3, 4, 280-334. 1 Hale P. C., 34, 35; 4 Blac. Com., 395, 396; 1 Russ. on Cr., p. 14; Shelf on Lunacy, 467, 468; Stock on Non-Com., 35, 36; 2 R. S., 698, § 2; 3 Robinson's Prac., 115; 1 Mass., 102.

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the attendance of witnesses and jurors; and, if it be satisfactorily proved that he is insane, said judge may discharge him from imprisonment and order his safe custody and removal to the asylum, where he shall remain until restored to his right mind; and then, if the said judge shall have so directed, the superintendent shall inform the said judge and the county clerk and district attorney thereof, so that the person so confined may, within sixty days thereafter, be remanded to prison, and criminal proceedings be resumed, or otherwise discharged; or, if the period of his imprisonment shall have expired, he shall be discharged.1

§ 90. THE RIGHT OF TRIAL BY JURY.

The statute declares that issues of fact upon indictment are to be tried by a jury, and the Constitution of the State further provides that the trial by jury, in all cases in which has been heretofore used, shall remain inviolate forever.3

Such trial shall be had by jurors drawn, summoned and returned in the manner prescribed by law, and where any court of oyer and terminer shall be held at the same time with any circuit court, the jurors returned for such circuit court shall be the jurors for such oyer and terminer, and the jurors returned for any county court shall be the jurors for the court of sessions appointed to be held at the same time.1

Under the Revised Statutes no venire is necessary in criminal

cases.

At the common law the petit jury should consist precisely of twelve, and is never to be either more or less, and this fact it is necessary to insert upon the record."

And by our statute it is provided that the first twelve persons who shall appear as their names are drawn and called, and shall be approved as indifferent between the parties, shall be sworn and shall constitute the jury.7

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In calling a jury, where the name of a juror is called and he

1 2d vol. R. S., 5 ed., p. 893, § 49, as modified by Laws 1847, ch. 280, § 29. 2 R. S., 733, § 1.

• Const., art. 1, sec. 2; Wynehamer v. Peo., 13 N. Y., 378.

2 R. S., 733, § 2.

Peo. v. Ferris, 1 Abb., 193.

1 Chit. Cr. L., 505; 2 Wm. Black., 719; 2 Hale P. C., 296; Cro. Eliz. 654; 3 Serg. & Rawle, 237; 7 Abb. Pr. R., 271.

'2 R. S., 420, § 128.

does not answer, his name is to be returned to the box with the undrawn ballots, and if he then returns into court, neither party can require him to take his seat as a juror.1

A trial by jury cannot be waived in criminal cases, and a conviction by a verdict of eleven jurors is illegal, although the prisoner requested and consented, and the prosecuting officer consented, in the progress of the trial, that one of the original panel of twelve jurors be withdrawn, and that the trial proceed with eleven.2

§ 91. OF THE RETURN AND SUMMONING OF JURORS.

The method of the selection and summoning of petit jurors is pointed out by the Revised Statutes. In the city of New York and the county of Kings, the jurors are selected by an officer known as the commissioner of jurors.3

In other counties of the State they are selected by the supervisor, town clerk and assessors of the several towns. In such cases duplicate lists of the persons selected are transmitted to the county clerk and filed with the town clerk. And in the city of New York and county of Kings, lists of the persons selected are also deposited in the county clerk's office. Previous to the holding of criminal courts of record, the clerk of the county in which such court is to be held is to draw the names of the persons to serve as jurors at such court, the same having been previously written upon ballots and deposited in a box, except in the county of Kings a majority of the judges named in the act for that county, and the commissioner of jurors, shall appoint one of their number to draw the names of the jurors from the box. The method and manner of making the drawing, the number of persons to be drawn, the officers who are to be present, the making and certifying of the names drawn, and the summoning of such persons by the sheriff, are all provided for by statutory enactment."

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The county judge, at the time of drawing grand or petit jurors

Peo. v. Larned, 3 Selden, 445.

Peo. v. Cancemi, 7 Abb., 271.

Laws 1858, ch. 322; Laws 1847, ch. 495.

2 R. S., 411, § 4.

• Id.

• Vide 5th ed., R. S., vol. 3, p. 695; Laws 1847, ch. 495, p. 734; Laws 1858, ch. 322, p. 517; Laws 1861, ch. 210, amended 1867, ch. 494, vol. 1, p. 1282.

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