must be sworn as a witness, and examined in the presence of the parties.

§ 414. Jurors may be permitted to separate during the trial; if kept together, oath of the officers. The jurors sworn to try an indictment may, at any time before the submis sion of the cause to the jury, in the discretion of the court, be permitted to separate, or be kept in charge of proper officers. Such officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to or com municate with them, nor to do so themselves, on any subject con nected with the trial, and to return them into court at the next meeting thereof.

See 1 Bish. Crim. Proc., §§ 994, 995; Rapalje's Crim. Pro., § 496; Stephens v. People, 19 N. Y. 549, 554; People v. Reagle, 60 Barb. 527; People v. Frost, 5 Park. 53; People v. Montgomery, 13 Abb. Pr. (N. S.) 208; People v. Douglass, 4 Cow. 26; Kelly v. State, 12 Cr. L Mag. 231,

Even in a capital case, if the court permits the jury to separate before submission and the defendant does not object until after verdict, the objection is waived. Henning v. State, 106 Ind. 386; 55 Am. Rep. 756.

On a murder trial after the case was submitted to the jury, members of the jury were permitted to go to a privy seventy-five yards distant, unattended by an officer. It was not shown that any one did or could communicate with them. Held, no error. State v. State, 64 Miss. 644; 60 Am. Rep. 70.

During the trial of a capital felony the jury were lodged every night in hotel. On the third night the hotel was destroyed by fire. The jury escaping became separated for an hour or more, some of them mingling with the crow about the fire, others going home. On an examination by the court every juro swore that during the separation no one had spoken to him or in his presenc on the subject of the trial. The prisoner did not object to the continuing the trial, but refused to assent, or waive any right or advantage resulting t him from the separation. Conviction being had, held, that the prisoner wa entitled to a new trial. Early v. State, 1 Tex. Ct. App. 248; 28 Am. Rep. 40%

415. Jurors not to converse together on the subject the trial, nor form an opinion until the cause is submi ted. The jury must also, at each adjournment of the cour whether permitted to separate or kept in charge of officers, admonished by the court, that it is their duty not to conver among themselves on any subject connected with the trial, or form or express any opinion thereon, until the cause is finall submitted to them.

See People, ex rel., v. Oyer and Terminer, 3 N. Y. Cr. Rep. 211; 36 Hun, 2 Unless it is shown that the prisoner has been prejudiced thereby, a judg

omission to admonish the jury on adjournment of court is not ground for a new trial. People v. Draper, 28 Hun, 1; 1 N. Y. Cr. Rep. 138.

A claim that the trial court omitted to admonish the jurors as required cannot be considered on appeal where there is no part of the record showing distinctly that this was not done, and no question appears to have been raised or exception taken in regard to the matter. People v. Rugg, 3 N. Y. Cr. Rep. 172.

Where the case on appeal does not disclose any failure on the part of the trial judge to admonish the jury at each adjournment, such failure will not be presumed. People v. Reavey, 4 N. Y. Cr. Rep. 2; 38 Hun, 418.

$416. Proceedings, where juror becomes unable to perform his duty before conclusion of trial. If, before the conclusion of the trial, a juror become sick, so as to be unable to perform his duty, the court may order him to be discharged, and another jury to be then or afterward impanneled.

See Cooley Const. Lim. 327-8; 1 Bish. Crim. Law, § 869.

After the retirement of the jury on a murder trial, one of them was taken very ill; he was put in bed in a communicating room, a physician was summoned who attended him, there, not speaking to the others at all, nor to him on the subject of the trial. It appearing that the prisoner sustained no injury, held, that a verdict of guilty was not vitiated. Goersen v. Com., 106 Penn. St. 477; 51 Am. Rep. 534.

$417. Court to decide questions of law arising during trial. The court must decide all questions of law which arise in the course of the trial.

See Thomp. Trials, § 1015–1031; Rapalje's Crim. Proc., § 345; People v. Rego, 3 N. Y. Cr. Rep. 277; 36 Hun, 131.

In People v. O'Neil, 49 Hun, 422, the court say: "A judgment will not be reversed merely because the judge submitted to the jury a question which he ought to determine himself, where it is clear that he ought to have decided it in the same way the jury have found. Miller v. Ins. Co., 2 E. D. Smith, 268; Compston v. Me Nair, 1 Wend. 457; Pangburn v. Ball, id. 345–352; Hall v. Suydam, 6 Barb. 83, 88; Thompson v. Roberts, 24 How. (U. S.) 233–240.”

418. On indictment for libel, jury to determine law and fact. On the trial of an indictment for libel, the jury have the right to determine the law and the fact.

The State Constitution, art. I, § 8, provides as follows: "In all criminal prosecutiens or indictments for libels, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall e acquitted; and the jury shall have the right to determine the law and the See People v. Croswell, 3 Johns. Cas. 337; State v. Syphrett, 27 So. (ar. 29; 13 Am. St. Rep. 616, 625, note.

§ 419. In all other cases, court to decide questions of law, subject to right of defendant to except. On the trial of an indictment for any other crime than libel, questions of law are to be decided by the court, saving the right of the defendant to except; questions of fact, by the jury. And although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court.

See 1 Greenl. Ev., § 49; 20 Am. Dec. 133, note; 9 Crim. Law Mag. 627-632; 3 id. 484; Thomp. Trials, § 2140; People v. Croswell, 3 Johns. Cas. 337.

The jury in criminal cases are bound by the instructions of the court as to the law, to the same extent as in civil cases. Duffy v. People, 26 N. Y. 589 Bk. VI (Reprint ed.), 187; People v. Upton, 38 Hun, 109; McKenna v. People 81 N. Y. 360; People v. Howell, 5 Hun, 820; 69 N. Y. 607; People v. Pine, Barb. 566; Allis v. Leonard, 58 N. Y. 291; People v. Finnegan, 1 Park. 147 But see People v. Thayer, 1 Park. 596. Contra, Kane v. Com., 89 Penn. St 522; 33 Am. Rep. 787; 1 Crim. Law Mag. 47, 51, note; Hudelson v. State, 9 Ind. 426; 48 Am. Rep. 171.

§ 420. Charge to jury. In charging the jury, the cour must state to them all matters of law which it thinks necessar for their information in giving their verdict; and must, requested, in addition to what it may deem its duty to say, infor the jury that they are the exclusive judges of all questions of fac

A new trial will not be granted because the judge, though requested, d clined to charge the jury, there being no question of law in the case. Peop v. Gray, 5 Wend. 289.

Comments by the trial judge on the testimony, so long as the judge leav all the questions of fact to the jury and instructs them that they are the s judges of matters of fact, are not the subject of legal exception. People Carpenter, 4 N. Y. Cr. Rep. 39; affirmed, id. 177; Winne y. McDonald, 39 Y. 239; Hart v. Ryan, 6 N. Y. Supp. 924; People v. O'Neil, 112 N. Y. 30 364; Allis v. Leonard, 58 id. 291; People v. McInerney, 5 N. Y. Cr. Rep. 47

A statement of the court that the evidence is convincing enough to warr the direction of a verdict if it was a civil case is not error where the quest of defendant's guilt is left to the jury. United States v. Curtis, 11 Abb. C. 1.

A charge of the court which brings to the attention of the jury evide relevant to a material fact in the case, and stating that if such evidence be t it tends to prove such fact, etc., and in no way controlling or directing jury as to the force and effect of such evidence, is not error. People v. gins, 1 N. Y. Cr. Rep. 290.

Where the courts properly submits to the jury a proposition covering whole issue, and instructs them that they must find it beyond a reasona doubt, he cannot be required to sub-divide it, and charge separately as to e

of the elements necessary to constitute the crime, that it must be established beyond a reasonable doubt. Walker v. People, 1 N. Y. Cr. Rep. 22; 8 N. Y.

86.

Where the court, upon the failure of a jury to agree, addresses to them remarks claimed to be improper, a general exception presents no question for review, unless it appears that no portion of such remarks was proper. Berry v. People, 1 N. Y. Cr. Rep. 43.

Where the judge charges that the crime charged in the indictment is a misdemeanor instead of a felony, and no exception was taken, held, no injury to accused. People v. Bragle, 88 N. Y. 585; 63 How. Pr. 143.

Where the court charged that the prisoner is presumed to be a sane man until he convinces you that he is insane, held, not error. O'Connell v. People, 87 N. Y. 377; 62 How. Pr. 436.

§ 421. Jury may decide in court, or retire in the custody of officers; oath of the officers. After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn, to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.

See People, ex rel. Choate, v. Barrett, 56 Hun, 351; 24 Abb. N. C. 432.

$422. When defendant on bail appears for trial, he may be committed.-When a defendant, who has given bail, appeare for trial, the court may, in its discretion, at any time after his appearance for trial, order him to be committed to the custody of the proper officer of the county, to abide the judgment or further order of the court; and he must be committed and held in custody accordingly.

CHAPTER II.

CONDUCT OF THE JURY AFTER THE CAUSE IS SUBMITTED TO THEM. *

SECTION 423. Room and accommodations for the jury after retirement, how

provided.

124. Accommodations for the jury, when kept together during the trial, or after retirement.

425, 426. What papers the jury may take with them.

SECTION 427. May return into court for information.

428. When jury to be discharged before agreement.

429. Reason for discharge.

430. When jury discharged or prevented from giving a verdict, cause to be again tried.

431. Court may adjourn during absence of jury, as to other business. but deemed open till verdict rendered or jury discharged.

432. Final adjournment of court discharges jury.

§ 423. Room and accommodations for the jury after retirement, how provided.-A room must be provided by the supervisors of the county (or if the trial be in a city court, by the corporate authorities of the city), for the use of the jury, upon their retirement for deliberation, with suitable furniture, fuel, lights and stationery. If the supervisors or corporate authorities neglect this duty, the court may order the sheriff to perform it; and the expenses incurred by him in carrying the order into effect, when certified by the court, are a county charge.

8424. Accommodations for the jury, when kept together during the trial, or after retirement. While the jury are kept together, either during the progress of the trial or after their retirement for deliberation, they must be provided by the sheriff, upon the order of the court, at the expense of the county (or if the trial be in a city court, at the expense of the city), with suitable and sufficient food and lodging.

See 1 Bish. Crim. Proc., § 997; O'Shields v. State, 55 Ga. 696; State v. O'Brien, 7 R. I. 336; State v. Caulfield, 23 La. Ann. 148; Com. v. Roby, 12 Pick. 496; State v. Hamilton, 19 Ohio St. 116; People v. Kelly, 46 Cal. 355; 55 Ga. 696.

§ 425. What papers the jury may take with them. — The court may permit the jury, upon retiring for deliberation, to take with them any paper or article which has been received as evidence in the cause, but only upon the consent of the defendant and the counsel for the people.

See Abbott's Crim. Brief, 500.

The fact that a jury took with them a copy of the statutes bearing upon the crime under consideration will not vitiate the verdict unless the prisoner is shown to have been prejudiced thereby. People v. Draper, 28 Hun, 1; 1 N. Y. Cr. Rep. 138: People v. Seeley, 3 id. 226.

As to the rule in civil cases, see Bailey's Trial Prac. 241.