evidence of such acts in furtherance thereof as depend solely upon its existence for their admissibility, unless the testimony of the accomplice is corroborated by other evidence. People v. White, 41 St. Rep., 837; 62 Hun, 120; 16 N. Y. Supp., 571.

Question of law. Whether the corroborating evidence meets the requirements of this section, is a question of law to be disposed of by the court, independently of any other evidence, which simply conflicts with its truth. People v. Courtney, 28 Hun, 594; 1 N. Y. Cr., 71.

Question of fact.-Where the supporting evidence tends to connect the defendant with the commission of the crime, the question whether it is sufficient corroboration of the accomplice is for the determination of the jury. People v. Everhardt, 5 St. Rep., 793; 2 Silv. (Ct. App.), 506; 104 N. Y., 594; 6 N. Y. Cr., 231.

The court, before it submits the case to the jury, should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime. People v. Elliott, 8 St. Rep., 223 ; 7 N. Y. Cr., 129.

In case there is such evidence, then it is for the jury to determine whether the corroboration is sufficient to satisfy them of the defendant's guilt. Id. Whether or not the testimony of the accomplice is corroborated, or is to be rejected, with or without corroboration, is a question of fact for the jury to determine. People v. Kerr, 6 N. Y. Cr., 406.

See People v. Friedlander, 43 St. Rep., 448; 63 Hun, 259; 18 N. Y. Supp., 218; People v. Emerson, 20 St. Rep., 18; 5 N. Y. Supp., 375; People v. Drown, 38 St. Rep., 986; 14 N. Y. Supp., 742; People v. Ricker, 22 St. Rep., 652; 51 Hun, 643; 4 N. Y. Supp., 72; Crary v. Crary, 46 St. Rep., 308; People t. Sanborn, 14 id., 123; People v. Bliven, id., 495.

§ 400. If testimony show higher offense than that charged, court may discharge jury, and hold defendant to answer a new indictment.—If it appear by the testimony, that the facts proved constitute a crime of a higher nature than that charged in the indictment, the court may direct the jury to be discharged, and all proceedings on the indictment to be suspended, and may order the defendant to be committed, or continued on or admitted to bail, to answer any new indictment which may be found against him for the higher offense.

See People v. Dartmore, 15 St. Rep., 839; 48 Hun, 323; 2 N. Y. Supp., 311. § 401. If new indictment not found, to be tried on the original indictment.-If an indictment for the higher crime be dismissed by the grand jury, or be not found at or before the next term, the court must again proceed to try the defendant on the original indictment.

$402. Court may discharge jury, where it has not jurisdiction of the offense, or the facts do not constitute an offense.-The court may also direct the jury to be discharged, where it appears that it has not jurisdiction of the crime, or that the facts, as charged in the indictment, do not constitute a crime.

$403. Proceedings, if jury discharged for want of jurisdiction of the offense, when committed out of the state. If the jury be discharged, because the court has not jurisdiction of the crime charged in the indictment, and it appear that it was committed out of the jurisdiction of this state, the court may order the defendant to be discharged, or to be detained for a reasonable time specified in the order, until a communication can be sent by the

district attorney to the chief executive officer of the state, territory or district where the crime was committed.

Consent will not give the court jurisdiction nor authorize a substantial change in its fundamental mode of proceeding. This cannot be enlarged or restricted. People v. Guidici, 100 Ñ. Y., 503; 3 N. Y. Cr., 558.

§ 404. Proceedings in such case, when offense committed in the state. If the crime were committed within the exclusive jurisdiction of another county of this state, the court must direct the defendant to be committed for such time as it deems reasonable, to await a warrant from the proper county for his arrest; or if the crime be a misdemeanor only, it may admit him to bail, in an undertaking, with sufficient sureties, that he will, within such time as the court may appoint, appear in such court to await a warrant from the proper county for his arrest.

§ 405. Proceedings in such case, when offense committed in the state. In the case provided for in the last section, the clerk must forthwith give notice to the district attorney of the proper county, that the defendant has been so committed or held to bail.

§ 406. Proceedings in such case, when offense committed in the state. If the defendant be not arrested, as provided in section 404, on a warrant from the proper county, he must be dis charged from custody, or his bail in the action be exonerated, or money deposited instead of bail refunded, as the case may be; and the sureties in the undertaking mentioned in that section must be discharged.

§ 407. Proceedings in such case, when offense committed in the state. If the defendant be arrested, the same proceedings must be had thereupon, as upon the arrest of a defendant in another county, on a warrant of arrest issued by a magistrate.

§ 408. Proceedings, if jury discharged because the facts do not constitute an offense. If the jury be discharged, because the facts as charged do not constitute a crime, the court must order the defendant, if in custody, to be discharged therefrom, or if admitted to bail, that his bail be exonerated, or if he have de posited money instead of bail, that the money deposited be refunded to him, unless in its opinion a new indictment can be framed, upon which the defendant can be legally convicted; in which case, it may direct that the case be re-submitted to the same or another grand jury.

§ 409. Proceedings, if jury discharged because the facts do not constitute an offense.-If the court direct that the case be submitted anew, the same proceedings must be had thereon as are prescribed in sections 318 and 319.

§ 410. When evidence on either side is closed, court may advise acquittal. Effect of the advice.-If, at any time after the evidence on either side is closed, the court deem it insufficient

to warrant a conviction, it may advise the jury to acquit the defendant and they must follow the advice.

Amended by chap. 360 of 1882.

This amendment struck out of the original section the latter portion, and substituted the words and they must follow the advice."

Direction of acquittal.-This section permits the court, when it deems the evidence insufficient to warrant a conviction, to so advise the jury, who are required to decide accordingly. People v. Trimble, 42 St. Rep., 717; 131 N. Y., 120.

If the prosecution fails in some element of proof necessary to constitute the crime, it is a clear case for the interposition of the court. Sullivan v. People, 27 Hun, 37; People v. Bennett, 49 N. Y., 137.

Where the evidence entirely fails to show an essential fact in the crime, it is the duty of the court to direct an acquittal. People v. Livingston, 27 Hun, 107.

See People v. Fanshawe, 47 St. Rep., 332; 8 N. Y. Cr., 330; 65 Hun, 77; People v. Brickner, 8 N. Y. Cr., 223; 15 N. Y. Supp., 531.

§ 411. View of premises, when ordered, and how conducted.— When, in the opinion of the court, it is proper that the jury should view the place in which the crime is charged to have been committed, or in which any material fact occurred, it may order the jury to be conducted, in a body, under charge of proper officers, to the place, which must be shown to them by a judge of the court, or by a person appointed by the court for that purpose.

Duty of court.-This section provides for a view when, in the opinion of the court, it is proper. People v. Johnson, 13 St. Rep., 48; 46 Hun, 672; 7 N. Y. Cr., 404; 27 W. Dig., 519.

The court has an undoubted authority to permit the jury to view the scene of the crime under this section. People v. Johnson, 16 St. Rep., 846; 110 N. Y., 143.

A juror has no right to proceed to view the premises without the permission of the court. People ex rel. Munsell v. Court, etc., 36 Hun, 279; 3 N. Y. Cr., 215; aff'd, 101 N. Y., 245.

The court, in its discretion, may, but is not bound to, allow the jury to view the premises. People v. Buddensieck, 3 St. Rep., 664; 103 N. Y., 501. Show premises.-This section seems to intend that a judge of the court, or a person appointed for that purpose, should show the place. People v. Palmer, 6 St. Rep., 341; 43 Hun, 403; 5 N. Y. Cr., 106.

The judge must convey to the jury, probably by words, his conviction that the place shown to the jury is that where the crime is charged to have been committed. Id.

Section 412 probably is not to be so construed as to prevent this communication with the jury. Id.

Error.-The refusal by the court to permit the defendant or his counsel to accompany the jury on their being conducted to the place where the crime is charged to have been committed, is error sufficient to cause the reversal of the judgment against him. Id.

Remedy.-Where a juror clandestinely, during the trial, visits the place where the offense was committed, and holds some conversation with the defendant, it amounts to such misconduct as will require the granting of a new trial. People v. Tyrrell, 3 N. Y. Cr., 148.

The defendant does not waive his rights by failure to disclose the misconduct of the juror. Id.

Punishment.-This section prescribes no punishment whatever for violating its implied prohibition. People ex rel. Munsell v. Court, etc., 36 Hun, 279: 3 Ñ. Y. Cr., 215.

A violation, by a juror, of the restraints provided for in this section is not declared to constitute a contempt of the court in which he is, at the time, serving. Id.

A juror who, during the progress of the trial of an indictment, goes to the scene of the alleged offense for the purpose of acquainting himself with the locality, is not guilty of a contempt, where no order of the court is disobeyed by such act. People ex rel. Munsell v. Court, etc., 101 N. Y., 245; aff'g 36 Hun, 277.

§ 412. Duty of officer as to jury.-The officers, mentioned in the last section, must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time.

Oath. The omission to administer the oath to the officers, as prescribed by this section, is waived by the consent of the defendant's counsel that such view should be taken, and his failure to object or call the attention of the court to the want of such oath. People v. Johnson, 16 St. Rep., 46; 110 N. Y., 144. Such omission is a mere irregularity. Id.

The failure to take the oath, under this section, does not require or justify a new trial, unless there is some opportunity to conclude that the defendant was prejudiced. People v. Johnson, 13 St. Rep., 48; 46 Hun, 673; 7 N. Y. Cr., 404; 27 W. Dig., 519; People v. Draper, 1 N. Y. Cr., 138.

The oath, required by section 414, post, embraces in terms substantially the requirements of this section. People v. Johnson, 13 St. Rep., 48; 46 Hun, 672; 7 N. Y. Cr., 404; 27 W. Dig., 519.

But whether the prior administration of such oath in reference to another purpose, which had been accomplished, is a sufficient compliance with this section, was not decided. Id.

See People v. Palmer, 6 St. Rep., 341; 43 Hun, 403; 5 N. Y. Cr., 106, 111. § 413. Knowledge of juror to be declared in court, and juror to be sworn as witness.-If a juror have any personal knowledge, respecting a fact in controversy in a cause, he must declare it in open court, during the trial. If, during the retirement of the jury, a juror declare a fact, which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness, and examined in the presence of the parties.

$ 414. Jurors may be permitted to separate during the trial. If kept together, oath of the officers.-The jurors sworn to try an indictment may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or be kept in charge of proper officers. Such officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to or communicate with them, nor to do so themselves, on any subject connected with the trial, and to return them into court at the next meeting thereof.

See People v. Johnson, 13 St. Rep., 48; 46 Hun, 672; 7 N. Y. Cr., 404.

§ 415. Jurors not to converse together on the subject of the trial, nor form an opinion until the cause is submitted. The jury must also, at each adjournment of the court, whether permitted to separate or kept in charge of officers, be admonished by the court, that it is their duty not to converse among themselves on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them.

Application. This section, it seems, refers to an adjournment from day to day, or for a longer time, and not to a recess taken during a single day's session. People v. Draper, 28 Hun, 3; 1 N. Y. Cr., 141; 15 W. Dig., 384. New trial.-An omission to admonish the jury, as directed in this section, is not one of the cases specified in section 465, post, in which a new trial may be granted. Id.

Especially, where a mere inadvertent omission to give the direction is not shown to have worked injury to the defendant. Id.

Contempt.-This section does not declare that jurors, who may contravene its provisions, shall be liable to be punished in proceedings by way of criminal contempt. People ex rel. Munsell v. Court, etc., 36 Hun, 279; 3 N. Y. Cr., 211.

Presumption. A failure, on the part of the trial judge, to admonish the jury at each adjournment, as required by this section, will not be presumed. People. Reavey, 38 Hun, 424 ; 4 N. Y. Cr., 17.

Appeal.—A claim that the trial court omitted to admonish the jurors, as required by this section, cannot be considered on appeal, where there is no part of the record showing distinctly that this was not done, and no question appears to have been raised, or exception taken in regard to the matter. People v. Rugg, 98 N. Y., 537; 3 N. Ÿ. Cr., 183.

§ 416. Proceedings, where juror becomes unable to perform his duty before conclusion of trial.-If, before the conclusion of the trial, a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged, and another jury to be then or afterward impaneled.

See People v. Nowak, 24 St. Rep., 274; 1 Silv. (Sup. Ct.), 412.

§ 417. Court to decide questions of law arising during trial.— The court must decide all questions of law which arise in the course of the trial.

On the trial of an indictment for murder, it is the duty of the court to decide all questions of law which arise on the trial, and instruct the jury within what crimes the evidence and inferences which the jury were authorized to draw, might bring the case. People v. Rego, 36 Hun, 131; 3 N. Y. Cr., 277.

A judgment will not be reversed merely because the judge submits to the jury a question which he ought to determine himself, where it is clear that he ought to decide it in the same way the jury find. People v. O'Neil, 17

St. Rep., 956; 49 Hun, 422.

§ 418. On indictment for libel, jury to determine law and fact.On the trial of an indictment for libel, the jury have the right to determine the law and the fact.

See section 8, art. 1, of State Constitution.

sub

§ 419. In all other cases, court to decide questions of law, ject to right of defendant to except.-On the trial of an indictment for any other crime than libel, questions of law are to be decided by the court, saving the right of the defendant to except; questions of fact by the jury. And although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court.

Law. Upon the trial of a criminal case, the court has the right to reserve its decision upon questions of law until the entire testimony is in. People v. McCallam, 4 St. Rep., 291; 103 N. Y., 587.

The court, in the trial of criminal cases, must, with the exception specified in this section, adjudicate upon all questions of law, and the jury, upon all questions of fact. People v. Upton, 38 Hun, 109; 4 N. Y. Cr., 468.