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, 84 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 dict 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 ver

dict 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.

§ 141. Special verdict; how brought to argument.—The special verdict may be brought to argument by either party, upon five days' notice to the other, at the same or another term of the court; and upon the hearing thereof, the counsel for the defendant may conclude the argument.

ร § 442. Judgment thereon. The court must give judgment upon the special verdict as follows:

1. If the plea be not guilty, and the facts prove the defendant guilty of the offense charged in the indictment, or of any other offense of which he could be convicted under that indictment, as provided in sections four hundred and forty-four and four hundred and forty-five, judgment must be given accordingly; but if otherwise, judgment of acquittal must be given;

2. If the plea be a former conviction or acquittal of the same offense, the court must give judgment of conviction or acquittal, according as the facts prove or fail to prove the former conviction or acquittal.

See People v. Burch, 5 N. Y. Cr. Rep. 32; 1 N. Y. State Rep. 751.

§ 443. When special verdict defective, new trial to be ordered. If the jury do not, in a special verdict, pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact from the evidence, as established to their satisfaction, the court must order a new trial.

§ 444. Upon indictment for offense consisting of different degrees, jury may convict of any degree, or of any attempt to commit the offense. Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime.

See § 390, ante; Penal Code, § 35, note; People v. Taylor, 3 N. Y. Cr. Rep. 302; People v. Sullivan, 4 id. 193; People v. Pamer, 43 Hun, 404; 5 N. Y. Cr. Rep. 105; People v. Meegan, 104 N. Y. 531; People v. McDonald, 49 Hun, 68.

The jury should first consider and determine whether the defendant is guilty of the crime charged, and if not so found, to consider lesser degrees. People v. Willson, 109 N. Y. 347.

In People v. Downs, 56 Hun, 6, it was held that a jury has no right to convict a defendant of a lesser degree of a crime simply because it doubts whether

he committed a greater degree, but the elements which constitute such degree must be themselves proved.

When requested to charge, that if doubt existed in the mind of the jury as to the grade of the offense committed, it was their duty to convict of the lesser, the court said that it had told the jury that the prisoner was entitled to all reasonable doubt. Held, sufficient. Abbott v. People, 86 N. Y. 460.

On a trial for grand larceny, first degree, may convict of grand larceny, second degree. People v. McCallam, 3 N. Y. Cr. Rep. 199; or of petit larceny. People v. McTameney, 30 Hun, 505; 1 N. Y. Cr. Rep. 437; 66 How. Pr. 70; 13 Abb. N. C. 55.

On an indictment for arson in the first degree, there may be a conviction for attempting to commit arson in any of the lesser degrees. People v. Long, 2 Edm. Sel. Cas. 129; People v. Didien, 17 How. Pr. 224.

Under an indictment for burglary defendant may be convicted of an attempt to commit the burglary charged. People v. Lawton, 56 Barb. 126; People v. Jackson, 3 Hill, 92; or of larceny. People v. Snyder, 2 Park. 23. Indictment need not allege facts or circumstances, which, if proven, would constitute the lesser crime. These are matters of evidence for the benefit of the accused. People v. McDonnell, 1 N. Y. Cr. Rep. 366; 92 N. Y. 657, mem. Indictment in common-law form sufficient, notwithstanding the statute, and permits a conviction for the offense charged in any degree, corresponding to the evidence. People v. McDonnell, 92 N. Y. 657; 1 N. Y. Cr. Rep. 368; People v. Thompson, 41 N. Y. i; Ruloff v. People, 11 Abb. (N. S.) 245; 45 N. Y. 213; Nevins v. People, 61 Barb. 307.

§ 445. In other cases, jury may convict of any offense necessarily included in that charge. In all other cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment.

See People v. Me Tameney, 13 Abb. N. C. 57; 66 How. Pr. 73; People v. Palmer, 43 Hun, 406; People v. Meegan, 104 N. Y. 531; People v. Dowling, 1 N. Y. Cr. Rep. 531; People v. McDonald, 49 Hun, 68; People v. Kennedy, 57 Hun,535.

§ 446. On indictment against several, jury may render a verdict as to some, and the cause be again tried as to the others. On an indictment against one or more, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, or which a judg ment must be entered accordingly; and the case, as to the rest, may be tried by another jury.

§ 447. In what cases court may direct a reconsideration of the verdict. When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct

the jury to reconsider their verdict; and if, after the reconsideration, they return the same verdict, it must be entered. But when there is a verdict of acquittal, the court cannot require the jury to reconsider it.

See Hegeman v. Cantrell, 40 N. Y. Super. 385; Root v. Sherwood, 6 Johns. 68; Blackley v. Sheldon, 7 id. 34.

§ 448. In what cases court may direct a reconsideration of the verdict. If the jury render a verdict which is neither a general nor a special verdict, as defined in sections four hundred and thirty-seven and four hundred and thirty-eight, the court may, with proper instructions as to the law, direct them to reconsider it; and it cannot be recorded, until it be rendered in some form. from which it can be clearly understood what is the intent of the jury, whether to render a general verdict, or to find the facts specially, and leave the judgment to the court.

§ 449. When judgment may be given upon an informal verdict. If the jury persist in finding an informal verdict, from which, however, it can be clearly understood, that their intention is to find in favor of the defendant, upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of convic tion can be given, unless the jury expressly find against the defendant, upon the issue, or judgment be given against him on a special verdict.

See People v. Burch, 5 N. Y. Cr. Rep. 32.

450. Polling the jury. When a verdict is rendered, and defore it is recorded, the jury may be polled, on the requirement of either party; in which case they must be severally asked whether it is their verdict; and if any one answer in the negative, the jury must be sent out for further deliberation.

See People v. Burch, 5 N. Y. Cr. Rep. 32; Leighton v. People, 10 Abb. N. C 261; 88 N. Y. 117.

§ 451. Recording the verdict. When the verdict is given, and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement be expressed, the verdict is complete, and the jury must be discharged from the case

§ 452. Defendant, when to be discharged or detained after acquittal. — If judgment of acquittal be given on a general verdict, and the defendant be not detained for any other legal cause, he must be discharged as soon as the judgment is given ; except that when the acquittal is for a variance between the proof and the indictment, which may be obviated by a new indictment, the court may order his detention, to the end that a new indictment may be preferred, in the same manner and with the like effect as provided in sections four hundred and eight and four hundred and nine.

See People v. Fuller, 12 Abb. N. C. 196; People v. Cruger, 38 Hun, 500.

§ 453. Proceedings upon general verdict of conviction or a special verdict. - If a general verdict be rendered against the defendant, or a special verdict be given, he must be remanded; if in custody, or if on bail, he may be committed to the proper officer of the county, to await the judgment of the court upon the verdict. When committed, his bail is exonerated, or if money be deposited instead of bail, it must be refunded to the defendant.

§ 454. When defendant acquitted on the ground of insanity, the fact to be stated with the verdict; commitment of defendant to state lunatic asylum. When the defense is insanity of the defendant the jury must be instructed, if they acquit him on that ground, to state the fact with their verdict. The court must, thereupon, if the defendant be in custody, and they deem his discharge dangerous to the public peace. or safety, order him to be committed to the state lunatic asylum, until he becomes sane.

See People, ex rel. Mooney, v. Walsh, 21 Abb. N. C. 300, n.

TITLE VIII.

OF THE PROCEEDINGS AFTER TRIAL AND BEFORE JUDGMENT.

CHAPTER I. Bill of exceptions.

II. New trials.

III. Arrest of judgment.