theory in regard to them. (Jefferds v. People, 5 Park., 522.) It is error for the judge, in a doubtful case, to call the attention of the jury to the absence of proof of good character. (People v. White, 24 Wend., 520.) And the judge has no right to allude to the prisoner's omission to avail himself of the privilege of being a witness in his own behalf. But the error is cured by instructing the jury that no inference is to be drawn from it. (Ruloff v. People, 45 N. Y., 213; S. C., 5 Lans., 261; 11 Ab. Pr. [N. S. ], 245.) It is error for the judge, in his charge, to suggest a motive for the crime charged, not warranted by the evidence. (People v. Bennett, 49 N. Y., 137.) It is proper for the judge to inform the jury of the questions of fact upon which they must necessarily pass; and when there is contradictory evidence, to state to then the effect of discrediting either class of witnesses. (People v. Larned, 7 N. Y., 445.) In a capital case, an instruction to the jury that if they believed the evidence, and that the crime was committed by the defendant under the circumstances detailed, the defendant was guilty of murder, is erroneous if the evidence presented questions proper to be passed upon by the jury, as to the grade of the crime. (People v. Quin, 1 Park., 340.) It is error to give a binding charge to the jury, in a case of circumstantial evidence, if the prisoner may be innocent, upon any hypothesis, however improbable. (Breen v. People, 4 Park., 380.) The court can not be called upon to charge upon the sufficiency of the indictment. The question is not for the jury. (Smith v. People, 47 N. Y., 303.)

Where a party relies upon an exception for refusing to charge as requested, the request must be perfectly proper as an entirety. If it embraces a single idea or view which ought not to be presented, it destroys the value of the exception, although a part of the legal proposition embraced, if detached and presented separately, might be entirely proper. (People v. Holmes, 6 Park., 25.)

An error in the charge of the court on a criminal trial, can only be availed of, in the court of appeals, upon exceptions duly taken on the trial. (Brotherton v. People, 75 N. Y., 159.)

Erroneous ruling.]—It seems that where, upon the trial of an action, either civil or criminal, the court corrects, or offers to correct, an erroneous ruling, and the party against whom it was made refuses to consent to the correction, or to avail himself of the offer, an exception to the ruling will not be available on appeal; provided the appellate court can see that the acceptance of the offer would have relieved the party from any actual or possible injury in consequence of the erroneous ruling. (Cox v. People, 80 N. Y., 500.)

Objection to evidence.]-Where a party does not object to improper evidence offered, it is discretionary with the trial court whether or not to exclude it on motion. (Pontius v. People, 82 N. Y., 339.) It seems that the remedy of the party is to ask for instructions to the jury that they should disregard the evidence. (Id.) An exception to the overruling of an objection to evidence, where the objection was made after the evidence had been received, is not available. (Id.)

When district attorney may employ counsel to assist him.]-The act of 1882 (ch. 196) provides that from and after the passage thereof, the district attorney for any county in which a capital case is to be tried, with the approval in writing of the county judge of the county, which shall be first filed in the county clerk's office, may employ counsel to assist him on such trial, and the costs and expenses thereof, to be audited by the board of supervisors, shall be a charge upon the county in which the indictment in the case is found, and shall be assessed, levied and collected by the board of supervisors of such connty at its next annual assessment, levy and collection of county taxes after such services shall have been performed, and thereupon be paid to the party entitled to the same.

CODE OF CRIMINAL PROCEDURE.

In what order trial to proceed.]-The jury having been impanelled and sworn, the trial must proceed in the following order: 1. The district attorney, or other counsel for the people, must open the case, and offer the evidence in support of the indictment;

2. The defendant or his counsel may then open his defence, and offer his evidence in support thereof;

3. The parties may then, respectively, offer rebutting testimony, but

the court, for good reason, in furtherance of justice, may permit them to offer evidence upon their original case;

4. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the defendant or his counsel must commence, and the counsel for the people conclude the argument to the jury;

5. The court must then charge the jury. (§ 388.)

Withdrawal of juror. 2 Cai., 304; 4 Park.. 527.

Defendant presumed innocent, until contrary proved. In case of reasonable doubt, entitled to acquittal.]—A defendant in a criminal action is presumed to be innocent, until the contrary be proved; and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. (§ 389.)

When reasonable doubt of which degree he is guilty, he must be convicted of the lowest.]-When it appears, that a defendant has committed a crime, and there is reasonable ground of doubt, in which of two or more degrees he is guilty, he can be convicted of the lowest of those degrees only. (§ 390.)

Rules of evidence in civil cases applicable in criminal cases, except where otherwise provided in this Code.]-The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code. (§ 392.)

Defendant as witness.]-The defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him. (§ 393.)

As to cross-examination of the defendant as a witness. See Newman v.
Peo., 63 Barb., 630; Peo. v. Genet, 19 Hun, 91; Peo. v. Brandon, 42 N.
Y.; Conners v. Peo., 50 id., 240; Peo. v. Moett, 23 Hun, 60; Peo. v.
Greenfield, id., 454; Peo. v. Casey, 72 N. Y., 393; Peo. v. Crapo, 76
id., 288.

Conviction cannot be had on testimony of accomplice, unless corroborated.]—-A conviction can not be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. ($399, as amended in 1882.)

See Peo. v. Davis, 21 Wend., 309; Peo. v. Costello, 1 Den., 83.

If testimony show higher offense than that charged, court may discharge jury, and hold defendant to answer a new indictment.]-If it appear by the testimony, that the facts proved constitute a crime of a higher nature than that charged in the indictment, the court may direct the jury to be discharged, and all proceedings on the indictment to be suspended, and may order the defendant to be committed, or continued on or admitted to bail, to answer any new indictment which may be found against him for the higher offense. ($ 400.)

If an indictment for the higher crime be dismissed by the grand jury, or be not found at or before the next term, the court must

again proceed to try the defendant on the original indictment. (8 401.)

Court may discharge jury, where it has not jurisdiction of the offense, or the facts do not constitute an offense.]—The court may also direct the jury to be discharged, where it appears that it has not jurisdiction of the crime, or that the facts, as charged in the indictment, do not constitute a crime. (§ 402.)

If the jury be discharged, because the court has not jurisdiction of the crime charged in the indictment, and it appear that it was committed out of the jurisdiction of this state, the court may order the defendant to be discharged, or to be detained for a reasonable time specified in the order, until a communication can be sent by the district attorney to the chief executive officer of the state, territory or district where the crime was committed. (§ 403.)

Proceedings in such case, when offense committed in the state.]-If the crime were committed within the exclusive jurisdiction of another county of this state, the court must direct the defendant to be committed for such time as it deems reasonable, to await a warrant from the proper county for his arrest; or if the crime be a misdemeanor only, it may admit him to bail, in an undertaking, with sufficient sureties, that he will, within such time as the court may appoint, appear in such court to await a warrant from the proper county for his arrest. (§ 404.)

In the case provided for in the last section, the clerk must forthwith give notice to the district attorney of the proper county, that the defendant has been so committed or held to bail. (§ 405.)

If the defendant be not arrested, as provided in section 404, on a warrant from the proper county, he must be discharged from custody, or his bail in the action be exonerated, or money deposited instead of bail refunded, as the case may be; and the sureties in the undertaking mentioned in that section must be discharged. (§ 406.)

If the defendant be arrested, the same proceedings must be had thereupon, as upon the arrest of a defendant in another county, on a warrant of arrest issued by a magistrate. (§ 407.)

Proceedings, if jury discharged because the facts do not constitute an offense.]-If the jury be discharged, because the facts as charged do not constitute a crime, the court must order the defendant, if in custody, to be discharged therefrom, or if admitted to bail, that his bail be exonerated, or if he have deposited money instead of bail, that the money deposited be refunded to him, unless in its opinion a new indictment can be framed, upon which the defendant can be legally convicted; in which case, it may direct that the case be re-submitted to the same or another grand jury. (§ 408.)

If the court direct that the case be submitted anew, the same proceedings must be had thereon as are prescribed in sections 318 and 319. (§ 409.)

When evidence on either side is closed, court may advise acquittal. Effect of the advice.]-If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant and they must follow the advice. (§ 410, as amended in 1882.)

See Babcock v. Peo., 15 Hun, 347; Case v. Peo., 6 Abb. N. C., 151; Howell v. Peo., 5 Hun, 620; 69 N. Y., 607.

View of premises when ordered, and how conducted.]— When, in the opinion of the court, it is proper that the jury should view the place in which the crime is charged to have been committed, or in which any material fact occurred, it may order the jury to be conducted, in a body, under charge of proper officers, to the place, which must be shown to them by a judge of the court, or by a person appointed by the court for that purpose. (§ 411.)

Duty of officer as to jury.]-The officers, mentioned in the last section, must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time. (§ 412.)

Knowledge of juror, to be declared in court, and juror to be sworn as witness.]-If a juror have any personal knowledge, recspeting a fact in controversy in a cause, he must declare it in open court, during the trial. If, during the retirement of the jury, a juror declare a fact, which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness, and examined in the presence of the parties. (§ 413.)

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 submission 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 communicate with them, nor to do so themselves, on any subject connected with the trial, and to return them into court at the next meeting thereof. (§ 414.)

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

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 impanelled. (§ 416.)

Trial must be had by twelve jurors and defendant can not waive right. Cancemi v. Peo., 18 N. Y., 128.

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. (§ 417.)

Indictment for libel.]-On the trial of an indictment for libel, the jury have the rights to determine the law and the fact. (§ 418.)

Art. 1, § 9, N. Y. Const.

In all other cases, court decides questions of law.]-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. (§ 419.)

See People v. Pine, 2 Barb., 566.

Charge to jury.]-In charging the jury, the court must state to them, all matters of law which it thinks necessary for their information in giving their verdict; and must, if requested, in addition to what may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact. (§ 420.)

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. (§ 421.)

When jury separate without authority, may be discharged and new trial had.
Peo. v. Reagle, 60 Barb., 527.

When defendant on bail appears for trial, he may be committed.]-When a defendant, who has given bail, appears 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. (§ 422.)

Rooms 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