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

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

1. If the plea be not guilty, and the facts prove the defendan guilty of the offense charged in the indictment, or of any othe offense of which he could be convicted under that indictmen as provided in sections four hundred and forty-four and for 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 san offense, the court must give judgment of conviction or acquitt according as the facts prove or fail to prove the former convicti 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 ordered. If the jury do not, in a special verdict, pronoun affirmatively or negatively on the facts necessary to enable court to give judgment, or if they find the evidence of fa merely, and not the conclusions of fact from the evidence established to their satisfaction, the court must order a new tr

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

See § 390, ante; Penal Code, $ 35, note; People v. Taylor, 3 N. Y. Cr. Rep. People v. Sullivan, 4 id. 193; People v. Pamer, 43 Hun, 404; 5 N. Y. Cr. 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 g of the crime charged, and if not so found, to consider lesser degrees. v. Willson, 109 N. Y. 347.

P

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

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. Mc Tameney, 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. 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. PalDer, 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 to those in regard to whom they do agree, or which a judgment 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 reconsidera tion, 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 reconside 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 th jury, whether to render a general verdict, or to find the fact specially, and leave the judgment to the court.

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

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

450. Polling the jury. When a verdict is rendered, a defore it is recorded, the jury may be polled, on the requireme of either party; in which case they must be severally ask whether it is their verdict; and if any one answer in the negati 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 261; 88 N. Y. 117.

§ 451. Recording the verdict. When the verdict is giv and is such as the court may receive, the clerk must immediat record it in full upon the minutes, and must read it to the j and inquire of them whether it is their verdict. If any ju disagree, the fact must be entered upon the minutes, and the j again sent out; but if no disagreement be expressed, the ver 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.

CHAPTER I.

BILL OF EXCEPTIONS.

SECTION 455. In what cases.

456. By whom settled, and how filed.

457. To be settled at the trial, or the point noted in writing.

458, 459. When and how settled, after the trial.

460. Enlarging the time therefor.

461. Effect of not serving exceptions or amendments, within time prescribed.

§ 455. In what cases.—On the trial of an indictment, exce tions may be taken by the defendant, to a decision of the cou upon a matter of law, by which his substantial rights are pre diced and not otherwise, in any of the following cases:

1. In disallowing a challenge to the panel of the jury; 2. In admitting or rejecting testimony on the trial of a ch lenge for actual bias to any juror who participated in the verd or in allowing or disallowing such challenge;

3. In admitting or rejecting witnesses or testimony, or in de ing any question of law, not a matter of discretion, or in charg or instructing the jury upon the law, on the trial of the issue.

See People v. McQuade, 110 N. Y. 284; 21 Abb. N. C. 418, 439, 447; P v. Welch, 1 N. Y. Cr. Rep. 488; People v. Petrea, id. 203; People v. Willett, 327; 36 Hun, 504; People v. Petmecky, 2 N. Y. Cr. Rep. 458; People v. Sulli 4 id. 197; People v. Palmer, 109 N. Y. 419; 5 N. Y. Cr. Rep. 105; Walker v. ple, 1 id. 7; Berry v. People, id. 43, 57; 19 Alb. L. J. 336; 77 N. Y. 588.

g 456. By whom settled, and how filed. - A bill cont ing the exceptions must be settled and signed by the presid judge, and filed with the clerk.

See People v. Bradner, 107 N. Y. 1; 44 Hun, 235; People v. Budden 103 N. Y. 478; People v. McQuade, 110 id. 284; Briggs v. Waldron, 83 id.

§ 457. To be settled at the trial, or the point note writing. The bill of exceptions must be settled at the unless the court otherwise direct. If no such direction be gi the point of the exception must be particularly stated in wri and delivered to the court, and must immediately be correcte added to, until it is made conformable to the truth.