with the pleadings and proceedings in the action, including all undertakings for the appearance of the defendant or of the witnesses, or a certified copy of the same, to the court to which the action is removed. § 352 Proceedings on removal, if defendant be in custody.— If the defendant be in custody, and the removal be to the court of over 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 before a jury is sworn ; authority of the court to which indictment is removed.-An order for the removal of the action is of no effect unless a certified copy thereof be filed, as required by section three hundred and fifty-one, before a juror is sworn to try the indictment. When thus filed, the court to which the action is removed must precede to trial and judgment therein. TITLE VI. OF THE PROCEEDINGS ON THE INDICTMENT, BEFORE TRIAL. CHAPTER I. The mode of trial. II. Formation of the trial jury. CHAPTER I. THE MODE OF TRIAL. SECTION 354. Issue of fact defined. 355. 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. R. S. 6th Ed., 102. § 4. §355. How tried.-As issue of fact must be tried oy 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 three hundred and forty-four. Id., § 18. If the offense was committed in another county, the defendant must be acquitted for want of jurisdiction. Griswold's Case, 1 C. H. Rec. 181. .-If § 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. (a) Must be present when verdict is rendered.-A prisoner tried for felony must be present at the taking of the verdict. (People v. Perkins, 1 Wend., 91; People v. Wilkes, 5 How. Pr. 105, The judgment record of a conviction for felony should show the presence of the prisoner during trial. (Safford v. People, 1 Park., 474.) (b) Prisoner must be always present.-After the jury had retired for deliberation they return into court and asked certain questions as to the evidence, Held, error in the court to answer the same in the absence of the prisoner. (Maurer v. People, 43 N. Y., 1.) (c) Counsel notified.-The right of a defendant to have his counsel notified, when the jury return into court and ask for instructions, before the instructions are given, is absolute. (People v. Cassiano, 1 N. Y. Cr. R. 505.) (d) Presence of prisoner at trial.-This statute is designed for prisoner's benefit, and a substantial compliance is all that is required. People v. Bragle, SS N. Y. 585; 63 How. 143; 14 Week. Dig. 260; 26 Hun, 378. See, also, 10 Abb. N. C. 300. (e) Argument on appeal; absence of prisoner.-The personal presence of the defendant on the agreement or at the decision in the appellate court is not necessary to give jurisdiction. (People v. Clark, 1 Park., 360.) (J) Prisoner need not be present on motion to quash.-On a motion to quash it is not necessary that the defendant be present in court during the argument. (People v. Vail, 57 How., 81; 6 Abb. Ñ. C., 206.) § 357. Preparation for trial.-After his plea the defendant is entitled to at least two days to prepare for his trial if he requires it. (a) People to procure attendance of defendant's witnesses.-When the place of trial has been changed on the application of the district attorney, if the defendant be in indigent circumstances the prosecution will be required, as as condition to such changing to secure the payment of the expense of their witnesses at such a place of trial. (People v. Baker, 3 Park., 181) (b) What affidavit must contain.-An affidavit, on which to found a continuance on the ground of absence of material witnesses, should state what is expected to be proved by them, though such contents may be waived by the court or district attorney, when the application is made in good faith. (People v. Horton, 4 Park., 222.) (c) Must show character of evidence in certain cases.-Where an application for continuance is apparently made for delay, the names of the witness and the nature of the evidence must be disclosed. (People v. Wilson, 3 Park., 199.) (d) Postpoement discretionary.-No exception lies to the refusal to postpone trial on account of absent witnesses. (Eighmy v. People, 79 N. Y., 546., Webster v. People, 92 id., 422.) CHAPTER II. FORMATION OF THE TRIAL JURY. SECTION 358. Jurors in criminal courts. § 358. Jurors in criminal courts.-The trial jury is formed, as prescribed by the Code of Civil Procedure. Code Civil Procedure, §§ 1027-1082 inclusive, §§ 1029-1126 § 1162, § 1174, § 1191, §§ 1079-1125, §§ 1163-1180, § 1190, §§ 3350, 3351. The legislature may regulate the manner of procuring a jury. (Stokes v. People, 53 N. Y., 164; Gardner v. People, 6 Park., 155.) Where mere irregularities in drawing a jury are not prejudicial to defendant, they are not grounds of error. (Cox v. People, 80 N. Y., 500; Ferris v. People, 35 N. Y., 125; Dolan v. People, 64 N. Y., 485. People v. Petrea, 92 N. Y. 128.) This section does not repeal Laws 1882, ch. 137, § 2, which directs the Seneca county clerk to keep separate the names of jurors for the two jury districts. (People v. Johnson, 16 N. Y. St. Rep., 846.) CHAPTER III. CHALLENGING THE JURY. SECTION 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 sufficiency of the facts be denied, adverse party may except; exception, how made and tried. 365. If exception overruled, court may allow denial of challenge; if allowed, may permit challenge to be amended. 366. Denial of challenge, how made, and trial thereof. 367. Who may be examined on trial of challenge. 368. If challenge allowed, jury to be discharged; if disallowed, jury to be impanneled. 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. § 359. Definition and divisions 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. 3 R. S. 6th Ed., 1028, § 11. $ 360. When there are several defendants, they must unite in their challenges. When several defendants are tried together they cannot sever their challenges, but must join therein. (a) Number of peremptory challenges allowed.-When defendants are jointly indicted and tried together they are only entitled to the same number of peremptory challenges, as they would be, were they tried separately. People v. Thayer, 1 Park., 596. § 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 panel returned for the term, as to an additional panel to complete the jury. (a) When not waived.—A challenge which has been allowed may be withdrawn by the prisoner, and when so done, all the irregularities are waived. (Russon v People, 79 N. Y., 424.) § 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 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. 3 R. S., 6th Ed., 706 § 185. (a) What irregularity is material.-An irregularity in the drawing of the jurors which cannot affect the right of the prisoner, is not ground for challenge to the array. (People v. Petra. 92 N. Y., 28.) (b) When sheriff is party.-Good ground for challenge to the array where the sheriff serving the venire is a party to the cause. (Woods v. Rowan, 5 Johns., 133.) Not ground of challenge where the circuit clerk is attorney for one of the parties, and was so at the time of the drawing, making and arraying the panel. (Wakeman v. Sprague, 7 Cow., 720.) (c) What sufficient ground.-Or that the panel was certified by the deputy clerk (People v. Fuller, 2 Park., 16); or on the ground that a certain class of persons were excluded in the selection of grand jurors. (People v. Jewett, 3 Wend., 314.) () Id. It is good ground for challenge, however, that certain jurors had not been duly summoned. (McCloskey v. People, 5 Park., 308.) (e) Id.--Mode of selecting and relieving jurors when liable to challenge to the array. (Gardiner v. People, 6 Park., 155.) () When two sets of jurors are drawn.-It is no cause for challenge to the array that two sets of jurors are drawn at the same time from the jury box for two distinct courts, if they be kept entirely separate. (Crune v. Dygert, 4 Wend., 675.) () Time of drawing.--Nor that the panel was drawn more than fourteen days before the sitting of the court. (Id.) (h) Answer to challenge need not be verified.-The district attorney need not verify his answer to the challenge to the array. (Gardiner v. People, 6 Park.. 155.) Effect of withdrawing challenge to array.--The withdrawal of a challenge to the array is a waiver of any irregularity in the drawing of the jury. (Pierson v. People, 18 Hun, 239; 79 N. Y., 424.) (j) Irregularity.-The mere fact that the list of petit jurors had been made up by the wrong officer, no prejudice to the accused being shown, is a mere irregularity. (People v. Petrea, 1 N. Y. 198, 92 N. Y. Cr. 128.) §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 the challenge. (k) A challenge cannot be alternative.-A challenge made in the alternative is bad. (Cox v. People, 19 Hun, 430; 80 N. Y., 500.) A challenge to the array if not made before the jurors are sworn is waived. (New York v. Mason, 4 E. D. Smith, 142; 1 Abb., 344.) § 364. If sufficiency of the facts be denied, adverse party may except; exception, who made and tried.-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. (a) Verification of challenge.-It seems that a verification of a challenge is required. A demurrer to the challenge is not the proper way to raise the objec tion of want of verification. ( (Cox v. People, 80 N. Y., 500. § 365. If exception overruled, court may allow denial of challenge; if allowed, may permit challenge to be amended.-If, on the exception, the court deem the challenge sufficient, it may, if justice require it, permit the party excepting, 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. § 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. A principal challenge for favor is triable by the court. (Pringle v. Huse, 1 Cow., 432.) §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, jury to be discharged; if disallowed, jury to be impaneled. 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 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 an in |