oyer and terminer of another county, than that where the indictment is pending, the order must provide for the removal of the defendant, by the sheriff of the county where he is imprisoned, to the custody of the proper officer of the county to which the action is removed; and he must be forthwith removed accordingly. § 353. Order for removal must be filed, etc. An order for the removal of the action is of no effect, unless a certified copy thereof be filed, as required by section 351, before a juror is sworn to try the indictment. When thus filed, the court to which the action is removed, must proceed to trial and judgment therein. Loomis v. People, 19 Hun, 601. TITLE VI. Of the Proceedings on the Indictment, before Trial. CHAPTER I. The mode of trial. II. Formation of the trial jury. III. Challenging the jury. CHAPTER I. THE MODE OF TRIAL. SEC. 354. Issue of fact, defined. 365. How tried. 356. Appearance. 357. Preparation for trial. § 354. Issue of fact, defined. — An issue of fact arises, 1. Upon a plea of not guilty; or 2. Upon a plea of a former conviction or acquittal of the same crime. People v. Williams, 35 Hun, 516; 3 N. Y. Cr. 62; People v. Haight, 13 Abb. N. C. 199. $355. How tried. - An issue of fact must be tried by a jury of the county in which the indictment was found, unless the action be removed, by order of the supreme court, into the court of oyer and terminer of another county, as provided in the second subdivision of section 344. Indictments before Code. Willett v. People, 92 N. Y. 29; People. Augs. bury, 97 ib. 501. People v. Williams, 35 Hun, 518; 3 N. Y. Cr. 62; People v. Penhollow, 42 Hun, 103; Twitchell v. Com. 7 Wall, 321; People v. Clark, 33 Hun, 876; People v. Haight, 11 Abb N. C. 199; Blake v. Everman, 56 Hun, 453; People v. Hall, 57 How 342; People v. Cancemi, 18 N. Y. 125; People v. Wynehamer, 18 id. $78; People ex rel. Baldwin e. Hawes, 37 Barb. 440; State e. Davis, 66 Mo. 684; 27 Am. Rep. 387; Com. v. Costley, 118 Mass. 1; State v. Carman, 63 Iowa, 130; 50 Am. Rep. 741; State v. Albee, 61 N. H. 423; 60 Am. Rep., $25; State e. Kaufman, 51 Iowa, 578; Swart e. Kimball, 44 Mich. 443. § 356. Appearance. — If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant, if he appear by counsel; but if the indictment be for a felony, the defendant must be personally present. See § 297, ante; and §§ 427, 434, post. Presence in connecting room. People v. Bragle, 88 N. Y. 585; s. c. 26 Hun, 378. People v. Palmer, 43 Hun, 407; 5 N. Y. Cr. 106; People v. Bonney, 19 Cal. 426; Stephens v. People, 19 N. Y. 519; 4 Park. 396; Tucker's Case, 5 C. H. Rec. 164; People v. Clark, 1 Park. 360 People v. Vail, 6 Abb. N. C. 206; 57 How. 81; Maurer v. People, 43 N. Y., 1; State v. Smith, 90 Mo. 37; 59 Am. Rep. 4; People v. Wilkes, 5 How. 105. § 357. Preparation for trial. After his plea, the defendant is entitled to at least two days to prepare for his trial, if he require it. Postponement on account of absent witnesses. People v. Vermilyea, 7 Cow. 369. Afilavits therefor, what to contain. Broad's Case, 3 C. H. Rec. 7; People v. Wilson, 3 Park. 199; People v. Horton, 4 ib. 222. No exception_lies to refusal to postpone trial for witnesses. Eighmy. People, 79 N. Y. 546; Webster . People, 92 id. 422. CHAPTER II. FORMATION OF THE TRIAL JURY. SEC. 358. Jurors in criminal courts. § 358. Jurors in criminal courts.— The trial jury is formed, as prescribed by the Code of Civil Procedure. Qualifications of trial jurors. Code of Civil Procedure, §§ 1027-1062 inclusive. Formation of the jury. Ib. §§ 1163-1180; ib. §§ 1190, 3350, 3351. Alien not entitled to special jury. Ib. § 1190. Trial jurors in Kings county. Ib. §§ 1029, 1126-1162, 1174, 1191. Trial jurors in city and county of New York. Ib. §§ 1029, 1079-1125, 1174, 1191. Legislature may regulate manner of procuring jury. Stokes v. People, 53 N. Y. 164; Gardner v. People, 6 Park. 155. Mere irregularities in drawing jury, not prejudicial, no ground of error. Cox v. People. 80 N. Y. 500; People v. Petrea, 30 Hun, 98; s. c., 92 N. Y. 128. People v. Jackson, 111 N. Y. 369; People v. Johnson, 110 id. 140; 46 Hun, 672; Dolan . People, 64 N. Y. 485; Ferris v. People, 35 id. 125; Friery v. People, 2 Keyes, 425; People v. Kiernan, 101 N. Y. 618; 4 N. Y. Cr. 88; 3 How. (N. S.) 264. CHAPTER III. CHALLENGING THE JURY. SEC. 359. Definition and division of challenges. 360. When there are several defendants, they must unite in their challenges. 361. Challenge to the panel, defined. 362. Upon what founded. 363. When and how taken. 364. If sufliciency of facts be denied, adverse party may except. Excep- 365. If exception overruled, court may allow denial of challenge. If 367. Who may be examined on trial of challenge. 368. If challenge allowed, jury to be discharged. If disallowed, jury to be impaneled. 369. Defendant to be informed of his right to challenge an individual juror. 370. Kinds of challenge to individual juror. 371. Challenge, when taken. 372. Peremptory challenge. 373 Number of peremptory challenges to which defendant is entitled. 374. Definition and kinds of challenge for cause. 375. General causes of challenge. 376. Particular causes of challenge. 377. Grounds of challenge for implied bias. 378. Grounds of challenge for actual bias. 379. Exemption not a ground of challenge. 380. Causes of challenge, how stated. 381. Exceptions to challenge and denial thereof. 382. Challenge, how tried, if denied. 383. Juror challenged may be examined as a witness. 384. Rules of evidence on trial of challenge. 385. Challenges, first by defendant and then by the people. 386. Order of challenges. 387. Jury to be sworn, etc. See note in 6 N. Y. Cr. 39. § 359. Definition and division of challenges.—A challenge is an objection made to trial jurors, and is of two kinds : 1. To the panel; 2. To an individual juror. People v. Petrea, 30 Hun, 98, 103. § 360. Where there are several defendants, etc.-When several defendants are tried together they can not sever their challenges, but must join therein. People v. McCalla, S Cal. 301; State v. Earle, 13 Am. Rep. 109. § 361. Challenge to the panel, defined.—A challenge to the panel is an objection made to all the trial jurors returned, and may be taken as well to the panal returned for the term, as to an additional panel ordered to complete the jury. Prisoner can waive challenge to the array after it is allowed. Pierson. People, 79 N. Y. 421. People Packenham, 115 N. Y. 202; People v. Jackson, 111 id. 369; Hathaway v. Helmer, 25 Barb. 29. § 362. Upon what founded.— A challenge to the panel can be founded only on a material departure, to the prejudice of the defendant from the forms prescribed by the Code of Civil Procedure, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn. People v. Petrea, 92 N. Y. 128, 145; People v. McQuade, 22 Abb. N. C. 449. McCluskey People, 5 Park, 308; Gardiner v. People, 6 id. 155; People v. Fuller, 2 id. 16; People v. Jewett, 3 Wend. 314; Crane v. Dygert, 4 id. 675; Pierson v. People, 79 N. Y. 424; 18 Hun, 239; Ferris v. People, 35 N. Y. 125; Friery v. People, 2 Keyes, 424; 2 Abb. Dec. 215; People v. Kiernan, 101 N. Y. 618; 4 N. Y. Cr. 88; People v. McQuade, 110 N. Y. 284; People v. Johnson, 46 Hun, 667. See 14 N. Y. Supp. 643. § 363. When and how taken.- A challenge to the panel must be taken before a juror is sworn, and must be in writing, specifying distinctly the facts constituting the ground of challenge. A challenge in the alternative is bad. Cox v. People, 19 Hun, 430; 86 N. Y. 500; People v. Petrea, 30 Hun, 98, 103; Lindsley v. People, 6 Park. 233; New York v. Mason, 1 Abb. 344; 4 E D. Smith, 142; Secord v. Burling, 1 How. 175; People v. Wilber, 39 N. Y. St. Rep. 743. § 364. If sufficiency of the facts be denied, etc.-If the sufficiency of the facts alleged as a ground of challenge be denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered upon the minutes of the court; and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true. See 381, post. Cox v. People, 19 Hun, 430; 80 N.Y. 500; People v. Petrea, 30 Hun, 98, 103; Gardiner v. People, 6 Park. 155; People v. Wilber, 39 N. Y. St. Rep. 743. § 365. If exception, overruled, court may allow, etc.-If, on the exception, the court deem the challenge sufficient, it may, if justice require it, permit the partyexcepting, to withdraw his exception, and to deny the facts alleged in the challenge. If the exception be allowed, the court may, in like manner, permit an amendment of the challenge. People v. Petrea, 30 Hun, 98, 103. § 366. Denial of challenge, how made, and trial thereof.—If the challenge be denied, the denial may, in like manner, be oral, and must be entered upon the minutes of the court; and the court must proceed to try the question of fact. People v. Petrea, 30 Hun, 98, 103; People v. Vermilyea, 7 Cow. 108; Pringle v. Hulse, lid. 432; Randall's Case, 5 C. H. Rec. 141; Gardner v. Turner, 9 Johns. 260; Stout v. People, 4 Park. 71, 132; People v. Wilber, 39 N. Y. St. Rep. 743. § 367. Who may be examined on trial of challenge. Upon the trial of the challenge, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge. § 368. If challenge allowed, etc.- If, either upon an exception to the challenge, or a denial of the facts, the challenge be allowed, the court must discharge the jury, so far as the trial of the indictment in question is concerned. If the challenge be disallowed, the court must direct the jury to be impaneled. § 369. Defendant to be informed of his right to challenge, etc.Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intend to challenge an individual juror, he must do so when the juror appears, and before he is sworn. To raise question of failure, on appeal; it must so appear. People v. O'Loughlin, 3 N. Y. Cr. 120; People v. Carpenter, 36 Hun, 315; 16 Abb. N. C. 128; 3 N. Y. Cr. 98; aff'd, 102 N. Y. 247; 4 N. Y. Cr. 185. § 370. Kinds of challenges to individual juror.— A challenge to an individual juror may be taken either by the people or by the defendant, and is either 1. Peremptory, or 2. For cause. People Carpenter, 36 Hun, 315; People v. Coniff, 2 Park. 586; Walter . People, 6 id. 15; 32 N. Y., 147; 18 Abb. 147. - § 371. Challenge, when taken. — A challenge must be taken when the juror appears, and before he is sworn; but the court may, in its discretion, for good cause, set aside a juror at any time before evidence is given in the action. See People e. Damon, 13 Wend. 351. If peremptory challenge is exhausted, fitness of juror may be raised on appeal. People v. Tyrrell, 3 N. Y. Cr. 142; otherwise not. People v. Petmecky, 2 N. Y. Cr. 450; aff'd, 99 N. Y. 415. See People v. Carpenter, 38 Hun, 491; 4 N. Y. Cr. 39; 36 Hun, 317; 3 N. Y. Cr. 92; 16 Abb. N. C. 130; People v. Beckwith, 103 N. Y., 369; 5 N. Y. Cr. 232; People e. McGungil, 41 Cal. 429; note on page 458 of 21 Abb. N. C. ( 372. Peremptory challenge. A peremptory challenge is an objection to a juror, for which no reason need be given, but upon which the court must exclude him. People v. Judson, 11 Daly, 1, 25; Friery v. People, 2 Keyes, 424; People v. Carpenter, 38 Hun, 490; 4 N. Y. Cr. 39. § 373. Id.; number of, etc.-Peremptory challenges must be taken in number as follows: 1. If the crime charged be punishable with death, thirty; 2. If punishable with imprisonment for life, or for a term of ten years or more, twenty; 3. In all other cases, five. People v. Keating, 61 Hun, 260; Stokes v. People, 53 N. Y. 164; Walter v. People, 32 id. 147; Hayesv. State, 120 U. S. 68; Northern P. R. Co. v. Herbert, 116 id. 642; Com. e. Dorsey, 103 Mass. 412. § 374. Definition, and kinds of challenge for cause.—A challenge for cause is an objection to a particular juror, and is either, 1. General, that the juror is disqualified from serving in any case; or 2. Particular, that he is disqualified from serving in the case on trial. § 375. General causes of challenge.—General causes of challenge are, 1. A conviction for a felony; 2. A want of any of the qualifications prescribed by the Code of Civil Procedure, to render a person a competent juror. |