with imprisonment in a state prison ten years or longer, is entitled peremptorily to challenge twenty jurors. (d) The statute also provides that no member of the grand jury which found the indictment can serve as a petit juror on the trial of it, if challenged for that cause.(e) Where several defendants are jointly indicted and tried, each of them is entitled to the number of peremptory challenges allowed by law; and a challenge by one excludes the juror challenged, as to all. (f) Persons of any religious denomination, whose opinions are such as to preclude them from finding the accused guilty of an offence punishable with death, are not to be compelled or allowed to serve as jurors on the trial of an indictment for any offence punishable with death. (g) Under this section of the statute it has been decided that it is not the opinions, on this subject, of the religious denomination to which the juror belongs which exclude him, but his own opinions; and therefore, if he entertains them, though he does not belong to a religious denomination, he is incompetent to serve as a juror.(h) Where a juror, after he is sworn in chief and has taken his seat, is discovered to be incompetent to serve, the court may, in the exercise of a sound discretion, set him aside at any time before evidence is given; and this may be done even in a capital case, and as well for cause existing before as after the juror was sworn. (¿) The forming and expressing an opinion by a juror, upon the guilt or innocence of the defendant is a principal cause of challenge. And the mere forming of an opinion is enough. (k) The discharge of a jury, in a criminal case, without agreeing on a verdict, rests in the sound discretion of the court in which the trial is had; and the exercise of such discretion will not be reversed on writ of error. So held when the jury were discharged after being out only 30 minutes.(1) If a juryman be taken ill so as to be incapable of attending through the trial, the jury may be discharged and the prisoner tried de novo, or another juryman may be added to the eleven; but in that case, the prisoner should be offered his challenges over again, as to the eleven, and the eleven should be sworn de novo.(m) So if during the trial the prisoner be taken so ill that he is incapable of remaining at the bar, the judge may discharge the jury, and on the prisoner's recovery another The jury may be returned, and the proceedings commenced de novo. court, on a trial for a misdemeanor, doubted whether in such a case the consent of counsel was sufficient to justify the proceeding with the trial in the absence of the defendant.(n) In cases not capital, where there is no prospect of agreement, a juror may be withdrawn without the defendant's consent.(0) And in capital cases, the court may discharge a jury in case of necessity;(p) but mere inability to agree, is not such a case, nor does it arise from the illness of some of the jury, if such illness can be removed by permitting refreshments, and the court, against the consent and prayer of the prisoner, refuses such refreshments, unless a majority of the jury agree to receive them. If, under such circumstances, the jury are discharged, the prisoner may plead it in bar to another trial.(q) If it should appear in the course of a trial that the prisoner is insane, the judge may order the jury to be discharged, that he may be tried after the recovery of his understanding. (r) In this state, it is not a matter of discretion with the court, whether it will try a person who is insane, or not; for by statute, no insane person can be tried or punished for any crime or offence, while he continues in that state. (s) When the evidence on both sides is closed, or after any evidence has been given, the jury cannot be discharged, unless in case of evident necessity, (as in the cases above mentioned,) till they have given in their verdict, but are to consider of it and deliver it in open court. But the court may adjourn, while the jury are withdrawn to confer, and may return to receive the verdict in open court.(t) And when a criminal trial runs to such length that it cannot be concluded in one day, the court, by its own authority, may adjourn till next morning. But the jury must be kept together, (at least in a capital case,) so that they may have no communication but with each other.(u) It is a general rule, that upon a criminal trial, there can be no separation of the jury after the evidence is entered upon, and before a verdict is given.(v) 4th. Defendant to be present.] No person indicted for any felony, can be tried, unless he be personally present during such trial; nor can any person indicted for any other offence, be tried unless he be present either personally or by his attorney. And every person indicted shall be admitted to make any lawful proof by competent witnesses on oath, or other lawful testimony.(w) 5th. Right to counsel.] In every trial on impeachment or indictment, the party accused is to be allowed counsel, as in civil actions.(x) 6th. Witnesses.] The provisions of law in civil cases relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempts, to enforce the remedies and protect the rights of parties, are extended to trials, &c. on indictments, so far as they are applicable, subject to the provisions contained in any statute.(y) 7th. Discharging one of several defendants.] Whenever two or more persons shall be included in the same indictment, and it shall appear that there is not sufficient evidence to put any defendant on his defence, it shall be the duty of the court to order such defendant to be discharged from such indictment, before the evidence shall be deemed to be closed.(z) 8th. Separate trials.] When two or more defendants shall be jointly indicted for any felony, any one defendant, requiring it, shall be tried separately. In other cases, defendants jointly indicted shall be tried separately or jointly, in the discretion of the court. (a) 9th. Entering a nolle prosequi.] A nolle prosequi is often entered by the district attorney, with the consent of the court. It is not lawful for him to do so without such leave, or in any way to discontinue or abandon the indictment. (b) The form of a nolle prosequi is, “The attorney general of the state of New-York (or the district attorney of the county of S.) saith that he will not prosecute further on behalf of the people against the defendant." And if the defendant be in custody at the time, an order is, in most cases, added that he be discharged from his imprisonment.(c) A nolle prosequi, and a consequent discharge from custody, is not an acquittal or discharge from further prosecution, and is, therefore, no bar to subsequent indictment for the same offence.(d) Even though the prosecutor desires it, a nolle prosequi cannot be entered without the concurrence of the attorney general. The court will never direct it except at his instance.(e) (w) 2 R. S. 734, § 13. (x) Id. 165, § 14. 1 id. 93, § 12. (y) Id. 735, § 14. (z) Id. ib. § 19. (a) 2 R. S. 735, § 20. (b) Id. 728, § 54. (c) 3 Rob. Prac. 127. (d) 2 Va. Cas. 345. 2 Mass. Rep. 172. 1 Chit. Cr. L. 478. 7 Pick. 179. 7 Conn. R. 418. (e) 1 Ld. Raym. 721. 2 Mass. R. 414. A nolle prosequi may be entered as to one of several defendants at any time before the trial.(f) So, it would seem, after verdict. Thus, where an indictment containing only one count, sets forth in aggravation of the offence charged, a former conviction of a similar offence, a nolle prosequi as to the matter in aggravation, may be entered after a conviction on the whole indictment. So, it seems, where there are several counts in the same indictment, and a general verdict, a nolle prosequi on one or more of the counts may be entered. (g) 10th. Commissions to examine witnesses abroad.] Commissions to examine witnesses residing out of this state may be issued by the court, upon the application of the accused, in the like cases, upon the same proof, and on similar terms as provided by law in civil cases; and the attorney for the people may join in such commission, and name witnesses on the part of the people. The interrogatories to be annexed to such commission are to be settled, and the commission issued, executed, and returned in the manner prescribed in respect to commissions in civil cases; and the depositions taken thereon and returned shall be read in the same cases and with the like effect as in civil suits.(h) 11th. Examining witnesses conditionally.] After an indictment has been found the defendant may have witnesses examined in his behalf, conditionally, on the order of a judge in the same cases, upon the like notice to the district attorney, and with the like effect in all respects, as in civil suits.(i) 12th. Compromising offences.] After an indictment is found for an assault and battery or other misdemeanor for which the injured party has a remedy by civil action; unless such offence was charged to have been committed, 1. By or upon any officer or minister of justice, whilst in the execution of the duties of his office, or 2. Riotously, or 3. With an intent to commit a felony, the prosecutor may appear in court and acknowledge satisfaction for the injury and damage sustained by him; and the court may in its discretion, on payment of costs, order that no further proceedings be had on such indictment, and may discharge the defendant therefrom. Which order shall operate as a perpetual stay of all further proceedings on such indictment.(k) 13th. Letting accused to bail.] In the cases where by law persons indicted may be let to bail for their appearance at the court having cognizance of the offence, they may be so let to bail by the court having jurisdiction to try the offence charged; of if such court be not sitting, by (f) 11 East's R. 307. (g) 7 Pick. 179. (h) 2 R. S. 731, §§ 73, 74. (i) Id. ib. § 75. the chancellor, any justice of the supreme court, circuit judge, or supreme court commissioner. If the offence may be tried in a court of general sessions, such persons may be let to bail by any judge of the county courts of the county where such indictment was found. And no other officers than those specified, can let to bail a person indicted for any offence. (1) The officer letting any person to bail after indictment shall immediately file the recognizance with the clerk of the county in which the indictment was found.(m) 14th. Exceptions by defendants.] On the trial of any indictment, exceptions to any decision of the court may be made by the defendant in the same cases and manner provided by law in civil cases; and a bill thereof shall be settled, signed and sealed, and shall be filed with the clerk of the court, and returned upon a writ of error as authorized in personal actions, or upon a certiorari as provided by statute; and the same proceedings may be had to compel the signing and sealing of such bill and the return thereof. But no such bill of exceptions shall stay or delay the rendering or execution of judgment unless the circuit judge who tried the cause, or a justice of the supreme court (if it was tried in the oyer and terminer) shall certify on such bill that in his opinion there is probable cause for the same, or so much doubt as to render it expedient to take the judgment of the supreme court thereon. In which case such certificate, on being filed with the clerk of the court, shall stay judgment on such indictment until the decision of the supreme court can be had upon such exceptions. If the indictment was tried in the general sessions, a similar certificate of the judge who presided on the trial, or of any justice of the supreme court, shall have the like effect. But no certificate shall be granted by a judge of the supreme court unless application therefor shall first have been made to the judge who presided at the trial, and his reasons for refusing the same be attached to the bill of exceptions. (n) Upon such certificate being granted, the defendant may be let to bail in the manner specified by the statute.(o) A bill of exceptions lies for refusing triors, or upon any question arising on any challenge to jurors, in a case where triors may be demanded.(p) 15th. Putting off trial.] There are several cases in which, upon a proper application, the court will put off the trial. And it has been laid down that no crime is so great, and no proceedings so instantaneous, but (1) 2 R. S. 728, §§ 56, 57. (m) Id. 729, § 58. As to letting to bail before indictment, see 2 R. S. 710. (n) 2 R. S. 736, §§ 21 to 25. (p) 21 Wend. 509. |