second subdivision of section three hundred and seventy-six, and for no other cause.

See 21 Abb. N. C. 447; 1 Thomp. Trials, § 59.

§ 379. Exemption not a ground of challenge. An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted.

General grounds of exemption. Code Civil Proc., §§ 1030, 1031.

Grounds of exemption in Kings county. Id., §§ 1127, 1128. In the city and county of New York. Id., §§ 1081, 1082.

One who is exempted from jury duty may waive his privilege and legally act as a juror. United States v. Lee, 4 Mackey, 498; 54 Am. Rep. 293; Green v.

State, 59 Md. 123; 43 Am. Rep. 542; 27 Alb. L. J. 393.

§ 380. Causes of challenge, how stated. In a challenge for implied bias, one or more of the causes stated in section three hundred and seventy-seven must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section three hundred and seventy-six must be alleged. In either case the challenge may be oral, but must be entered upon the minutes of the court.

See People v. Otto, 101 N. Y. 690; 4 N. Y. Cr. Rep. 155; Freeman v. People, 4 Denio, 9.

§ 381. Exceptions to challenge and denial thereof. The adverse party may except to the challenge, in the same manner as to a challenge to the panel; and the same proceedings must be had thereon, as prescribed in section three hundred and sixty-four, except that, if the challenge be allowed, the jury must be excluded. The adverse party may also orally deny the facts alleged as the ground of challenge.

§ 382. Challenge, how tried, if denied.-If the facts be denied, the challenge must be tried by the court which must either allow or disallow the same and direct an entry accordingly on the minutes. If the challenge be allowed, the juror must be discharged.

See Greenfield v. People, 74 N. Y. 277; State v. Pike, 49 N. H. 399; 6 Am. Rep. 542.

383. Juror challenged may be examined as a witness. Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness, to prove or disprove

the challenge; and is bound to answer every question pertinent to every inquiry therein.

See People v. Welch, 1 N. Y. Cr. Rep. 488.

$384. Rules of evidence on trial of challenges. Other witnesses may also be examined on either side; and the rules of evidence applicable to the trial of other issues, govern the admis sion or exclusion of testimony, on the trial of the challenge.

See People v. Welch, 1 N. Y. Cr. Rep. 488.

§ 385. Challenges, first by people and then by the defendant.- Challenges to an individual juror must be taken first by the people and then by the defendant.

See People v. McQuade, 110 N. Y. 284; 21 Abb. N. C. 417.

§ 386. Order of challenges. - Challenges of either party must be taken:

1. To the panel;

2. To an individual juror, for a general disqualification; 3. To an individual juror, for implied bias;

4. To an individual juror, for actual bias;

5. Peremptory.

See 21 Abb. N. C. 454; People v. Welch, 1 N. Y. Cr. Rep. 488.

387. Jury to be sworn, etc.-The first twelve persons who appear, as their names are drawn and called, who are approved as indifferent between the parties, and are not discharged or excused, must be sworn; and constitute the jury to try the issue.

CHAPTER L The trial.

TITLE VII.

OF THE TRIAL.

II. Conduct of the jury, after the cause is submitted to them.
III The verdict.

CHAPTER I.

THE TRIAL.

SECTION 388. In what order trial to proceed.

389. Defendant presumed innocent, until contrary proved; in case of reasonable doubt, entitled to acquittal.

390. When reasonable doubt of which degree he is guilty, he must be convicted of the lowest.

3o1. Separate trial of defendants jointly indicted.

392. Rules of evidence in civil cases applicable to criminal cases, except where otherwise provided in this Code.

393. Defendant as witness.

894. Compensation of witness.

395. Confession of defendant, when evidence, and its effect.

396, 397. Evidence on trial for treason.

398. Evidence on trial for conspiracy.

399. Conviction cannot be had on testimony of accomplice, unless corroborated.

400. If testimony show higher crime than that charged, court may discharge jury, and hold defendant to answer a new indict

ment.

401. If new indictment not found, defendant to be tried on the orig. inal indictment.

402. Court may discharge jury, where it has not jurisdiction of the offense, or the facts do not constitute an offense.

403. Proceedings, if jury discharged for want of jurisdiction of the offense, when committed out of the state.

404-407. Proceedings in such case, when offense committed in the

state.

408, 409. Proceedings, if jury discharged because the facts do not constitute an offense.

410. When evidence on either side is closed, court may advise acquit tal; effect of the advice.

411. View of premises, when ordered, and how conducted.

412. Duty of officer as to jury.

413. Knowledge of juror, to be declared in court, and juror to be sworn as witness.

414. Jurors may be permitted to separate during the trial; if kept together, oath of the officers.

415. Jurors not to converse together on the subject of the trial, nor form an opinion until the cause is submitted.

416. Proceedings, where juror becomes unable to perform his duty before conclusion of trial.

417. Court to decide questions of law arising during trial.

418. On indictment for libel, jury to determine law and fact.

419. In all other cases, court to decide questions of law, subject to

right of defendant to except.

SECTION 420. Charge to jury.

421. Jury may decide in court, or retire in the custody of officers; oath of the officers.

422. When defendant on bail appears for trial, he may be committed.

§ 388. In what order trial to proceed. The jury having been impanneled 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 defense, 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.

§ 389. 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.

To convict a defendant the jury are required to find that the facts presented, remove reasonable doubt of his guilt, and to support such conclusion, it must be founded on testimony giving facts legitimately pointing in that direction. People v. Newton, 3 N. Y. Cr. Rep. 406.

The guilt must be established beyond a reasonable doubt, not beyond a possible doubt. People v. Riley, 3 N. Y. Cr. Rep. 375; Poole v. People, 80 N. Y. 646.

66

An instruction that a reasonable doubt was a real, substantial and wellfounded doubt, and not a mere possibility that the defendant is innocent," and that "the testimony of one witness, if true, is sufficient to warrant a conviction," is correct. State v. Gann, 72 Mo. 374.

The term "reasonable doubt" implies that there may be doubts which are not reasonable; it means a substantial, well-founded doubt. State v. Rounds, 76 Me. 123.

A reasonable doubt does not mean all doubt. U. S. v. Wright, 16 Fed. Rep. 112.

In People v. Guidici, 100 N. Y. 509; 3 N. Y. Cr. Rep. 551, the trial judge, in charging the jury, defined a reasonable doubt as follows: "It is not a mere guess or surmise that a man may not be guilty; it is such a doubt as a reasonable man may entertain after a fair review and consideration of the evidence. A doubt for which some good reason arising from the evidence can be given. When you find such a doubt as that in a case, it is your duty to give the prisoner the fullest and amplest benefit of it." Held, no error. See, also, Rapalje's Crim. Proc., § 366; Lowenstein's Trial, pp. 195–203; Billings's Trial (Moak's argument), 16-18; State v. Porter, 64 Iowa, 237; Cọx v. People, 109 III. 457; People v. Willett, 36 Hun, 500; People v. Cruger, 4 N. Y. Cr. Rep. 60; 38 Hun, 500; People v. Stott, 4 N. Y. Cr. Rep. 306; Brown v. State (Ind.), 5 N. E. Rep. 900; Watt v. People, 126 Ill. 9; 1 L. R. A. 403. Judge Seymour D. Thompson's article (11 Crim. L. Mag. 1) on "The Doctrine of Reasonable Doubt." Thompson's Trials, §§ 2164-2195, 2438; 16 Irish Law Times, 351.

It is a doubt arising from a candid and impartial investigation of all the evidence, and such a doubt as in the graver transactions of life would cause a reasonable and prudent man to hesitate. Dunn v. People, 109 Ill. 635.

In charging the jury on the trial of Fanny Hyde (Pamphlet Trial, p. 157) the court said: "It is the duty of the court to say to you, in that respect, that a reasonable doubt is not a whim, a conjecture, or a supposition, but a reasonable and substantial doubt, such as might be entertained by intelligent men, and it rests either on the absence of some necessary link in the chain of evidence, or on some substantial fact which the evidence has established."

In State v. Meyer, 58 Vt. 457, the respondent requested the court to charge the jury that "if they believe that the evidence, upon any essential point in the case, admits of the slightest doubt consistent with reason, the prisoner is entitled to the benefit of that doubt and should be acquitted." The court instructed the jury that if they believed that the evidence upon any essential point in the case admits of any reasonable doubt, a doubt consistent with reason, the prisoner is entitled to the benefit of it." Held, no error.

Instructions that from the evidence the jury were to "deduce the guilt or innocence of defendant," held, erroneous because repugnant to the doctrine of the presumption of innocence and reasonable doubt. Hackett v. State, 13 Tex. App. 406. An instruction defining a reasonable doubt as one for which the jury can give a reason based upon the testimony is erroneous. Cowan v. State, 22 Neb. 519. Unless a juror is so convinced of the guilt of the accused that moral certainty is reached, there may be said to remain a reasonable doubt in the mind. Territory v. Owens, 3 Mont. 137; Territory v. McAndrews, id. 158. An instruction which limits a reasonable doubt to something which is suggested by or arises from the evidence adduced, gives too narrow a definition of that which is implied by a reasonable doubt. Wright v. State, 69 Ind. 163. See, also, Wade v. State, 71 id. 535.

In Miles v. U. S., 103 U. S. 304; 23 Alb. L. J. 327, the trial judge charged the jury as follows: " 'The prisoner's guilt must be established beyond reasonable doubt. Proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind to a moral certainty that the fact exists that is claimed to exist, so that you feel certain that it exists. A balance of proof is not sufficient. A juror in a criminal case ought not to condemn unless the evidence