§ 426. What papers the jury may take with them. — The jury may also take with them notes of the testimony or other proceedings on the trial, taken by themselves or any of them. but none taken by any other person.

In Mitchell v. Carter, 14 Hun, 448, after the adjournment for the day, the jury having been charged, occupied the court-room and found there the minutes kept by the justice holding the court; some of the jurors read portions of the minutes, and commented thereon; and others attempted to read them but could not make them out. The minutes did not contain all the testimony, nor were they used by consent of counsel. Held, the verdict was properly set aside for irregularity.

8427. May return into court, for information. — After the jury have retired for deliberation, if there be a disagreement between them, as to any part of the testimony, or if they desire to be informed of a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given after notice to the district attorney and to the counsel for the defendant, and in cases of felony, in the presence of the defendant.

See 6 Crim. L. Mag. 185; 4 Amer. & Eng. Encyc. of Law, 815; People v. Moore, 50 Hun, 359; Cornish v. Graff, 36 id. 164; Maurer v. People, 43 N. Y. 1; Roberts v. State, 111 Ind. 342; Rolls v. State, 52 Miss. 391.

Where the jury return to court for further instructions, the prisoner's counsel must be notified, though the prisoner himself is present. People v. Casano, 30 Hun, 388; 1 N. Y. Cr. Rep. 505.

The jury being sworn to render a truthful verdict upon the evidence, the extent of the punishment in no way comes within the range of their province, and the court may decline to instruct them on the subject. People v. Ryan, 55 Han, 217; Wood v. People, 1 id. 386. Contra, People v. Cassiano, 30 id. 388.

$428. When jury to be discharged before agreement.After the jury have retired to consider of their verdict, they can be discharged before they shall have agreed thereon only in the following cases:

1. Upon the occurrence of some injury or casualty affecting the defendant, the jury or some one of them, or the court, rendering it inexpedient to keep them longer together; or

2. When after the lapse of such time as shall seem reasonable to the court, they shall declare themselves unable to agree upon a verdict; or

3. When with the leave of the court, the public prosecutor and the counsel for the defendant consent to such discharge.

As to coercion of jury by the court, see Cranston v. Railroad Co., 103 N. Y 614; Huntoon v. Russell, 50 How. Pr. 155; People, ex rel., v. Neilson, 22 Hun, 1; Erwin v. Hamilton, 50 How. Pr. 33; State v. Mead, 53 id. 57; Berry v. People, 1 N. Y. Cr. Rep. 43, 57; State v. Bybee, 17 Kans. 462; State v. Lawrence, 38 Iowa, 51; Pierce v. Pierce, 38 Mich. 412. In the case last cited the jury, after being out for one day, sent word to the judge that they could not agree. The judge sent back word that he did not believe it yet, and added the suggestion that they had better agree that night, as he was going away and should not be back until the second day after, and they might not get discharged until he returned. The verdict was returned within an hour afterward. Held, that it must be set aside as obtained by duress. The court said: "Jury trials can never be safe unless the verdict is made as far as possible the unbiased and free conclusion of every juror. Every attempt to drive men into an agreement which they would not have reached freely is a perversion of justice. It may be discretionary with the trial judge to keep a jury out until he is satisfied an honest and free agreement is not to be expected. But there is no legal propriety in keeping a jury confined unreasonably after they have come to an agreement, and a verdict obtained by the suggestion of such an alternative is a verdict obtained by what it would be hard to distinguish from duress. It may be that the court is not bound to be present continually on the chances of an agreement; but any unusual and prolonged delay is not to be favored without giving an opportunity to find a sealed verdict. This error, however innocently committed, as we are bound to suppose it was, must nevertheless, in our opinion, be held fatal to the verdict."

$429. Reason for discharge. Whenever the jury is dis charged without a verdict, the reason for the discharge must be entered on the minutes.

§ 430. When jury discharged or prevented from giving a verdict, cause to be again tried. In all cases where a jury are discharged, or prevented from giving a verdict, by reason of an accident or other cause, except where the defendant is discharged from the indictment, during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term.

See People v. Goodwin, 18 Johns. 187; People v. Peagle, 60 Barb. 527; People v. Denton, 2 Johns. Cas. 275.

§ 431. Court may adjourn during absence of jury, as to other business, but deemed open till verdict rendered or jury discharged.— While the jury are absent, the court may adjourn from time to time, as to other business; but it is never theless deemed open, for every purpose connected with the caus

submitted to the jury, until a verdict is rendered or the jury discharged.

See Code Civ. Proc., § 34; People v. Clews, 4 Abb. N. C. 256; People v. Jack#9, 111 N. Y. 362; People v. Sullivan, 115 id. 185.

$432. Final adjournment of court discharges jury.A final adjournment of the court discharges the jury, but any term of a court may be continued for the purpose of finishing a trial or receiving a verdict.

CHAPTER III.

THE VERDICT.

SECTION 433. When the jury have agreed, to be brought into court and their names called; if all do not appear, jury to be discharged and cause again tried.

434 In felony, defendant must be present; in misdemeanor, verdict may be rendered in his absence.

435. Manner of taking the verdict.

436. Verdict may be general or special.

437. General verdict.

438. Special verdict.

439, 440. Special verdict; how rendered.

441. Special verdict; how brought to argument.

442. Judgment thereon.

443. When special verdict defective, new trial to be ordered.

444. Upon indictment for crime consisting of different degrees, jury may convict of any degree, or of any attempt to commit the crime.

445. In other cases, jury may convict of any offense necessarily included in that charge.

446. On indictment against several, jury may render a verdict as to some, and the cause be again tried as to the others.

447, 448. In what cases court may direct a reconsideration of the
verdict.

449. When judgment may be given upon an informal verdict.
450. Polling the jury.

451. Recording the verdict.

452. Defendant, when to be discharged or detained after acquittal. 453. Proceedings upon general verdict of conviction, or a special verdict.

454. When defendant acquitted on the ground of insanity, the fact to be stated with the verdict; commitment of defendant to state lunatic asylum.

$433. When the jury have agreed, to be brought into court and their names called; if all do not appear, jury to be discharged and cause again tried. When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged with out giving a verdict. In that event, the cause may be again tried, at the same or another term.

§ 434. In felony, defendant must be present; in misde meanor, verdict may be rendered in his absence. If the indictment be for felony, the defendant must, before the verdict is received, appear in person. If it be for a misdemeanor, the verdict may be rendered in his absence.

See §§ 297, 427, ante; Abbott's Crim. Brief, 506, § 821.

FELONIES. People v. Perkins, 1 Wend. 91; Son v. People, 12 id. 344; Saj ford v. People, 1 Park. 474; State v. Epps, 76 N. C. 55; Smith v. State, 51 Wis 615; 37 Am. Rep. 845; Beaumont v. State, 1 Tex. Ct. App. 533; 28 Am, Rep 424; Temple v. Com., 14 Bush, 769; 29 Am. Rep. 442; Smith v. People, 8 Cold 457; State v. Johns, 35 La. Ann. 208; Folden v. State, 13 Neb. 328; Cook v State, 60 Ala. 39; 31 Am. Rep. 31; State v. Jenkins, 84 N. C. 812; 37 Am. Rep 643; Barton v. State, 67 Ga. 653; 44 Am. Rep. 743.

MISDEMEANORS. People v. Wilkes, 5 How. Pr. 105.

§ 435. Manner of taking the verdict.— If the jury appea they must be asked by the court or the clerk, whether they hav agreed upon their verdict; and if the foreman answer in th affirmative, they must, on being required, declare the same.

§ 436. Verdict may be general or special.—The jury ma either render a general verdict, or when they are in doubt as the legal effect of the facts proved, they may, except upon a indictment for libel, find a special verdict.

See People v. Rugg, 98 N. Y. 551; 3 N. Y. Cr. Rep. 182; People v. Tayl id. 302; Hawker v. People, 75 N. Y. 487; Conkey v. People, 1 Abb. Dec. 418 Park. 31; People v. McGeery, 6 id. 653; People v. Bruno, id. 657.

§ 437. General verdict. A general verdict upon a plea not guilty is either "guilty" or "not guilty;" which imports conviction or acquittal of the offense charged in the indictme Upon a plea of a former conviction or acquittal of the sa offense, it is either "for the people," or " for the defendant."

See Polinsky v. People, 11 Hun. 390; 73 N. Y. 65; Hawker v. People, 75 id. 487; People v. Rugg, 98 id. 551; 3 N. Y. Cr. Rep. 182; People v. Taylor, id. 302. A general verdict of guilty is the finding of the truth of all the material accounts of the indictment, including value, where that is material; People v. Bork, 1 N. Y. Cr. Rep. 393.

General verdict of guilty is erroneous under an indictment for obstructing the highway, containing averments of continuance, when it appears that the defendant acted for his wife, who was the owner of the land. People v. Livingston, 27 Hun, 105; 63 How. Pr. 242.

Where the record on a former trial showed that there were two pleas, one of not guilty and the other a former acquittal made by the defendant to the indictment, yet the only verdict rendered by the jury appearing on the record is "guilty as charged in the indictment," held, that as the jury did not find against the defendant upon his plea of former acquittal, and as there is no verdict upon the issue raised by that plea and no judgment thereon, a new trial must be had to correct the error in that respect. People v. Burch, 5 N. Y. Cr. 32; 1 N. Y. State Rep. 751.

438. Special verdict. - A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact, as established by the evidence, and not the evidence to prove them; and these conclusions of fact must be so presented as that nothing remains to the court but to draw from them conclusions of law.

See People v. Taylor, 3 N. Y. Cr. Rep. 302; People v. Hale, 1 id. 553. Where, on a trial of an indictment of different counts, there is a specific verdict of guilty on one count and silence as to all others, it is a bar to the prosecution on the count as to which the verdict is silent. People v. Dowling, N. Y. 478.

"We find the prisoner guilty of receiving stolen goods, knowing them to be stolen," not sufficient under an indictment for feloniously receiving stolen property, knowing it to have been stolen. Miller v. People, 25 Hun, 473.

$439. Special verdict; how rendered. The special ver diet must be reduced to writing, by the jury or in their presence, entered upon the minutes of the court, read to the jury, and agreed to by them, before they are discharged.

See People v. Taylor, 3 N. Y. Cr. Rep. 302.

440. Special verdict; how rendered. The special verdict need not be in any particular form, but is sufficient if it present intelligibly the facts found by the jury.

See People v. Hale, 1 N. Y. Cr. Rep. 535.