made by the prosecution, but to any defense interposed. People v. Riordan, 26 St. Rep., 531; 117 N. Y., 73. If, taking the whole case together, the evidence for the prosecution and the evidence respecting the defense, the jury have any doubt of the guilt of the prisoner, they must acquit. People v. Stone, 27 St. Rep., 823; 117 N. Y., 480. See People v. Downs, 34 St. Rep., 262; 123 N. Y., 558.

In order to convict, the guilt must be established beyond a reasonable, not beyond a possible, doubt. People v. Riley, 3 N. Y. Cr., 374.

A reasonable doubt as to any element of the crime entitles the defendant to an acquittal. People v. Willett, 36 Hun, 500.

This rule is applicable in respect to the degree of the crime charged, and to every essential requisite of that degree. Id.

If the jury has a reasonable doubt as to the truth of any one of the defenses, there is a reasonable doubt whether defendant's guilt is satisfactorily shown, and he is entitled to an acquittal. People v. Downs, 29 St. Rep., 122; 7 N. Y. Cr., 481; 56 Hun, 11; 8 N. Y. Supp., 524.

Where the jury entertain a reasonable doubt as to the defendant's guilt, he is entitled to a verdict of acquittal. People v. Reavey, 38 Hun, 427. The benefit of a reasonable doubt, if it arise from the evidence, that the defendant is guilty of the crime, should be given to him. O'Connell v. People. 87 N. Y., 377.

The rule of law, that gives to a person accused of crime the benefit of every reasonable doubt, is always one for the jury under proper instructions from the court. People v. Davis, 46 St. Rep., 214.

If there is reasonable doubt as to the prisoner's sanity arising upon the evidence in the case, and upon nothing else, the jury should give him the benefit of such doubt and acquit him. Walker v. People, 1 N. Y. Cr., 7, 22. Where evidence has been given to support the defense of insanity, then the prosecution holds the affirmative, and if a reasonable doubt of sanity exists upon the evidence, the defendant is entitled to the benefit of that doubt. People v. Coleman, 1 N. Y. Cr., 5.

The definition that a reasonable doubt "is not a mere guess or surmise that the man may not be guilty, it is such a doubt as a reasonable man might entertain after a fair review and consideration of the evidence-a doubt for which some good reason arising from the evidence can be given,” was approved by the court of appeals in People v. Guidici, 100 N. Y., 503; 3 N. Y. Cr., 559.

Reasonable doubt is such a doubt as honest, conscientious, painstaking men may entertain upon a state of facts presented to them. People v. Stott, 4 N. Y. Cr., 306.

If the jury have any reasonable doubts upon any facts which are necessary to convict the defendant, he is entitled to be acquitted. People v. Guidici, 100 N. Y., 503; 3 N. Y. Cr., 558.

Peo

A defendant is entitled to have the jury instructed that the law presumes him to be innocent of the crime charged, until the contrary is proved. ple v. Van Houton, 38 Hun, 170. An instruction that the jury must be satisfied beyond a reasonable doubt of his guilt is not equivalent.

Id.

The court is not bound to subdivide the point of reasonable doubt by limiting it to any particular branch of the case. People v. Reavey, 38 Hun, 428.

The jury, in order to convict the defendant, are required to find that the facts presented remove reasonable doubt of his guilt. People v. Newton, 3 N. Y. Cr., 406. Such conclusion must be based on testimony of facts legitimately pointing in that direction. Id.

This rule is not applicable to an action for a penalty in which the people is the party plaintiff. People v. Briggs, 22 St. Rep., 317; 114 N. Y., 65. The question of reasonable doubt is always one for the jury under proper instructions from the court. People v. Davis, 46 St. Rep., 214. When there

is evidence upon which the jury might, or might not, entertain rational doubt, it is not for the court on appeal to say that the jury should have doubted and have given the defendant the benefit of such doubt by his acquittal. Id.

See People v. Brickner, 8 N. Y. Cr., 221, 223; 15 N. Y. Supp., 530, 531.

§ 390. When reasonable doubt of which degree he is guilty,

he must be convicted of the lowest.-When it appears that a de fendant has committed a crime, and there is reasonable ground of doubt, in which of two or more degrees he is guilty, he can be convicted of the lowest of those degrees only.

A jury have no right to convict of a less degree of a crime, simply because they doubt whether the defendant committed a greater degree, but the elements which constitute such degree must themselves be proved. People t Downs, 29 St. Rep., 117; 56 Hun, 5; 7 N. Y. Cr., 481.

See People v. Davis, 46 St. Rep., 214.

§ 391. Separate trial of defendants jointly indicted. When two or more defendants are jointly indicted for a felony, any defendant requiring it, must be tried separately. In other cases, defendants jointly indicted may be tried separately or jointly in the discretion of the court.

The right of the prosecution to try the prisoner separately is fixed by this section. People v. Clark, 4 N. Y. Cr., 575.

Discretion. The making or refusing an order directing one of several persons jointly indicted to be tried separately, is within the discretion of the trial court. People v. Clark, 38 Hun, 214; 2 St. Rep., 540; 102 N. Y., 735; 4 N. Y. Cr., 575; 1 Silv. (Ct. App.), 162.

Proof. When a party jointly indicted with another for an offense, charged to have been the result of their joint act, is tried separately, either upon his own election or otherwise, the indictment is well supported by proof sufficient to warrant a conviction if the party on trial had been indicted for the offense alone. People v. Cotto, 42 St. Rep., 716; 131 N. Y., 580; 4 Silv. (Ct. App.), 10.

§ 392. Rules of evidence.. Evidence of certain children, how received. The rules of evidence in civil cases are applicable also to criminal cases except as otherwise provided in this Code. Whenever in any criminal proceedings a child actually or apparently under the age of twelve years offered as a witness does not in the opinion of the court or magistrate understand the nature of an oath, the evidence of such child may be received though not given under oath if, in the opinion of the court or magistrate, such child is possessed of sufficient intelligence to justify the reception of the evidence. But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence.

Amended by chap. 279 of 1892.

This amendment added to the original, all after the first sentence of the present section.

Same.-The rules of evidence are the same in civil and criminal cases, except as otherwise provided by this section. People v. Burns, 2 N. Y. Cr.,

427.

This section provides that the rules of evidence in civil cases are appli cable also to criminal cases. People v. Hill, 47 St. Rep., 779; 65 Hun, 420, Section 834 of Civil Code.-Section 834 of the Code of Civil Procedure was made applicable to criminal actions by the amendment of 1879. This section makes section 834 of the Code of Civil Procedure applicable to criminal trials. People v. Brower, 24 St. Rep., 939; 53 Hun, 219; 6 N.Y. Supp., 731; People v. Murphy, 101 N. Y., 129.

Whatever possible doubt may have existed that section 834 of the Code of Civil Procedure is applicable to criminal actions is fairly dispelled by this section. People v. Murphy, 4 N. Y. Cr., 98.

Husband and wife.-As to admissibility of confidential communications between husband and wife on the trial of either when indicted or accused of a crime, see People v. Lewis, 42 St. Rep., 772; 16 N. Y. Supp., 884.

Conviction. The record of conviction for a crime or misdemeanor is admissible in evidence, to affect the weight of the testimony of a witness in a criminal action. People v. Kelly, 35 Hun, 304; 3 N. Y. Cr., 47.

A witness cannot be discredited by showing that he has been indicted. Von Bokkelen v. Berdell, 41 St. Rep., 314; 130 N. Y., 145.

See Stowell v. Amer. Co-operative R. Ass'n., 1 Silv. (Sup. Ct.), 253, note.

§ 393. Defendant as witness.-The defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him.

Constitutional.-The provisions of this section are not in conflict with section 6, art. 1, of the state constitution. People v. Courtney, 31 Hun, 202; 1 N. Y. Cr., 557; 94 N. Y., 490.

Protection. The law, so far as it can, protects a defendant, who omits to be sworn, from having that fact weigh against him. People v. Tice, 43 St. Rep., 576; 131 N. Y., 656; 4 Silv. (Ct. App.), 104.

The district attorney violates the rights of the defendant in commenting to the jury upon the significance of the latter's neglect or refusal to testify in his own behalf. People v. Rose, 22 St. Rep., 393; 52 Hun, 38; 4 N. Y. Supp., 790.

The practical meaning of this section is that the court and jury must, so far as they can, determine the defendant's case without prejudice or inference against him, founded upon his omission to testify. Id.

In criminal prosecutions, the fact that the prisoner does not avail himself of the provision of this section, is not to militate against him. Sigel v. Sigel, 47 St. Rep., 399.

This statutory declaration is not in accord with experience. People v. Rose, ante.

Offering himself as witness.-The accused is not compelled, by this section, to become a witness. People v. Tice, 43 St. Rep., 576; 131 N.Y., 656: 4 Silv. (Ct. App.), 104. But if he accepts the privilege, he takes it with its attendant dangers. Id.

The defendant cannot be compelled to be a witness against himself; but, by consenting to take the stand, he waives the constitutional protection, and may be examined in the same manner as any other witness. Connors r. People, 50 N. Y., 240; People v. Guidici, 100 id., 503; 3 N. Y. Cr., 551.

The defendant, by making himself a witness, becomes subject_to_the_same rules of cross-examination made applicable to other witnesses in legal proceedings. People v. Courtney, 94 N. Y., 490; 1 N. Y. Cr., 490; 1 N. Y. Cr., 566; People v. Casey, 72 N. Y., 394.

A defendant, who has availed himself of the privilege, accorded him by the act, of testifying, cannot afterwards object that his rights were violated by his being permitted to avail himself of that privilege. People v. Courtney, 31 Hun, 202; 1 N. Y. Cr., 557.

The court of appeals has announced in many cases that an accused person, who becomes a witness in his own behalf, thereby places himself in the attitude of any other witness in respect to the right of cross-examination. People v. Tice, 43 St. Rep., 576; 131 N. Y., 657; 4 Silv. (Ct. App.), 104; Brandon v. People, 42 N. Y., 265; Connors v. People, 50 id., 240; Stover v. People, 56 id., 315; People v. Casey, 72 id., 394; People v. Crapo, 76 id., 288; People v. Noelke, 94 id., 137.

Extent of cross-examination.-The extent to which the cross-examination of a prisoner, as a witness on the trial, may be carried, is necessarily very much in the discretion of the trial court. People v. Clark, 2 St. Rep., 543: 1 Silv. (Ct. App.), 166: 102 N. Y., 736.

The range and extent of the cross-examination of a defendant, who makes himself a witness, is within the discretion of the trial judge, provided only that it relates to relevant matters or to matters affecting credibility. People v. Tice, 43 St. Rep., 576; 131 N. Y., 657; 4 Silv. (Ct. App.), 104.

Credibility. It was held, in People v. Kiernan, 3 N. Y. Cr., 247, that it was not error for the court to charge that the defendant, who had testified, "has, doubtless, every interest in this world to falsify, if falsifying would bring any immunity to him, and he is undoubtedly to be judged bearing that in mind, but he is not to be discredited for that reason.'

Where the accused testifies in his own behalf, on the trial of an indictment for rape, it is not improper for the trial court to instruct the jury that, while his evidence is to be considered as that of any other witness, they should, in determining his credibility, consider the fact that he stands charged with the commission of a serious criminal offense. People v. Crowley, 1 St. Rep., 388; 102 N. Y., 234; 4 N. Y. Cr., 168.

Where the defendant testifies in his own behalf, the jury have a right to disbelieve his story. People v. Roehl, 52 St. Rep., 147.

The jury are not bound to accept the exculpatory statements of defendant as unquestionably true. People v. Beckwith, 4 N. Y. Cr., 337.

Perjury. This section, which allows a witness to take the stand in his own behalf, subjects him to the same consequences as other witnesses, and exposes him, where he gives false testimony knowingly, to prosecution by way of indictment afterwards, though his testimony may result in his favor. People v. Sculley, 3 N. Y. Cr., 245.

§ 394. Compensation of witnesses.-The rules as to the compensation of witnesses attending trials in criminal cases, prescribed by special statutes, are continued as there defined. See sections 615 and 731, post.

§ 395. Confession of defendant, when evidence, and its effect.— A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but is not suf ficient to warrant his conviction, without additional proof that the crime charged has been committed.

See note in People v. Everhardt, 2 Silv. (Ct. App.), 518, 519, 520, 522, 523, 524, 525, 526.

The case of People v. Mondon, 38 Hun, 188; 4 N. Y. Cr., 112, was reversed in 2 St. Rep., 713; 103 N. Y., 211.

The reference in People v. Mondon, 2 St. Rep., 713; 103 N. Y., 211; 4 N. Y. Cr., 561, to section 395 of Penal Code should be to this section of Criminal Code.

The reference to this section in People v. Welch, 1 N. Y. Cr., 488, should be to section 361, ante.

This section does not supersede the case of People v. McMahon, 15 N. Y., 484, nor is the case of People v. McGloin in conflict with the former case. People v. Mondon, 2 St. Rep., 793; 103 N. Y., 218, 219; 4 N. Y. Cr., 559. Common-law rule.-This section has not changed the rule of the common law in favor of one charged with crime. People v. McCallam, 3 N. Y. Cr.. 196.

The rule, established by this section, is founded upon the common-law rule on the subject of confessions, but is much more definite and stringent. People v. Mondon, 2 St. Rep., 793; 103 N. Y., 219; 4 N. Y. Cr., 559.

This provision was not intended to apply to any but voluntary confessions, or to change the statutory rules relating to the examination of prisoners charged with crime. Id.

Before Code. The following propositions were, prior to the adoption of this Code, well settled by law in this state: First. All confessions material to the issue, voluntarily made by a party, whether oral or written, and however authenticated, were admissible as evidence against him on a trial for a criminal offense. People v. Wentz, 37 N. Y., 303. Second. It was no objection to the admissibility of such confessions, that they had been taken under oath from a person attending before a coroner, in obe dience to a subpoena, upon an inquiry conducted pursuant to law, into the causes of a homicide. Hendrickson v. People, 10 N. Y., 13. Third. That the confession or declaration sought to be given in evidence was in writing and purported to be sworn to, was no objection to its admissibility, unless it also appeared that it was taken before a magistrate upon a judi

cial investigation against the person accused of the commission of the crime. People v. McGloin, 91 N. Y., 247; 1 N. Y. Cr., 154.

What is not.-A statement by the defendant, denying any criminal act and explaining to his own advantage a suspicious circumstance, is not to be deemed a confession under this section. People v. McCallam, 3 N. Y. Cr., 197.

Voluntary. The object of this section is to declare what confessions shall be deemed voluntary, and, therefore, admissible, whether made out of court to a private person, or in court, or in the course of any judicial proceeding between any parties. People v. Mondon, 2 St. Rep., 713; 103 N.

Y., 221; 4 N. Y. Cr., 559.

The test of admissibility of the statements of a party accused of the commission of the crime, whether made in the course of judicial proceedings or not, is whether they were voluntary. People v. Chapleau, 30 St. Rep., 989; 121 N. Y., 274. This can be determined by their nature and the circumstances under which made. Id. If in all respects, and however viewed, they could only have been the voluntary and uninfluenced statements of the individual, no principle of law warrants their exclusion and the Code expressly authorizes their being given in evidence upon the trial. Id.

A voluntary confession is one proceeding from the spontaneous suggestion of the party's own mind, free from the influence of any extraneous disturbing cause. People v. McMahon, 15 N. Y., 384; People v. Chapleau, ante.

Where the evidence does not disclose any threats, nor authorize an inference that the confession was made under the influence of fear, the statement, though sworn to by the accused, is in no respects compulsory, and is admissible in evidence under this section. People v. McGloin, 91 N. Y., 241; 1 N. Y. Cr., 154; 12 Abb. N. C., 172; 16 W. Dig., 255.

In People v. Kurtz, 3 St. Rep., 715; 42 Hun, 335, it was held that the confession was not shown to be so clearly voluntary, under this section, that it was admissible.

Voluntary statements by defendant, on his arrest, as to the offense with which he is charged, made to the officers having him in custody, are admissible against him. People v. Chacon, 3 N. Y. Cr., 425. *

Voluntary statements of a prisoner, made after his arrest, are properly admitted in evidence upon his trial. Willett v. People, 27 Hun, 469.

Examination.-An examination of a person, arrested on a criminal charge, which is conducted in violation of the provisions of this section, is not admissible against him on his trial for the offense. People v. Mondon, 2 St. Rep., 713; 103 N. Y., 220; 4 N. Y. Cr., 559.

A statement not taken under or in reference to the provisions of sections 198, 199 and 200, ante, is entirely extra-judicial, and is governed and controlled in its value and effect as evidence, by this section. People v. McGloin, 28 Hun, 150; 1 N. Y. Cr., 110; 16 W. Dig., 138.

Voluntary confessions, when fairly proven, constitute evidence of a high character. People v. Bishop, 53 St. Rep., 61; 69 Hun, 105.

Before coroner.-The statement of a prisoner before the coroner and jury, if made at his own election and request, and without the operation of the influences of fear, produced by threats, or of hope, under a stipulation that he would not be prosecuted, is admissible, under the provisions of this section, on a trial against him to prove the homicide. People v. Chapleau, 30 St. Rep., 989; 121 N. Y., 272.

A mere consciousness of being suspected of a crime does not so disqualify a person that his testimony, in other respects freely and voluntarily given, before the coroner, cannot be used against him on his trial on a charge, subsequently made, of such crime. Teachout v. People, 41 N. Y., 7.

When a coroner's inquest is held before it has been ascertained that a crime has been committed, or before any person has been arrested charged with a crime, the testimony of a witness, who is called and sworn before such jury, may be used against him on his trial, in case he shall afterwards be charged with the crime. People v. Mondon, 2 St. Rep., 713; 103 N. Y., 221; 4 N. Y. Cr., 559. The mere fact that, at the time of his examination, he was aware that a crime was suspected, and that he was suspected of being