The coast may discharge a jury in a case of necessity, in a criminal case, without furnishing a bar to a new trial. People v. Reagle, 60 Barb., 527. In this case, the jury, after the cause was tried and submitted to them, separated without authority, and without having agreed upon any verdict. It was held that this constituted no bar to another trial upon the same indictment. See People v. Goodwin, 18 John., 187; People v. McKay, id., 212; People v. Cancemi, 18 N. Y., 128; People v. Shepherd, 25 id., 406. § 431. Court may adjourn during absence of jury, as to the other business, but deemed open till verdict rendered or jury discharged. While the jury are absent, the court may adjourn from time to time, as to other business; but it is nevertheless deemed open for every purpose connected with the cause submitted to the jury, until a verdict is rendered or the jury discharged. See section 34 of Code of Civil Procedure. Adjournment.-A justice of the Supreme Court cannot adjourn a court, appointed to be held on a certain day, by sending a letter ordering such adjournment and not attending such court himself. People v. Clews, 4 Abb. N. C., 256. Where the court is held at a place provided for by statute, a judge has no authority to adjourn such court to be held at any other place within the district. Northrup v. People, 37 N. Y., 203. Where the term of the court has been regularly opened, an adjournment is simply a suspension of proceedings, and a non-attendance on the adjourned day does not deprive the court of jurisdiction to proceed, as soon as it is possible for it to attend. People v. Sullivan, 24 St. Rep., 579; 115 N. Y., 185; rev'g 17 St. Rep., 669; 49 Hun, 333. No organization.-The failure of the judge to appear upon the day appointed for the commencement of a term will prevent the organization of a legal court. People v. Bradwell, 2 Cow., 445. See People v. Sullivan, 24 St. Rep., 579; 115 N. Y., 190. Postponement of trial.-The granting or refusal of a motion to postpone the trial of a criminal action is, it seems, in the discretion of the court, and its decision thereon, where there is no abuse of discretion, is not reviewable upon appeal. People v. Jackson, 19 St. Rep., 506; 111 N. Y., 362. 432. Final adjournment of court discharges jury.-A final adjournment of the court discharges the jury, but any term of a court may be continued for the purpose of finishing a trial or receiving a verdict. See notes under section 472, post. CHAPTER III. THE VERDICT. SECTION 433. When the jury have agreed, to be brought into court and their names called. If all do not appear, jury to be discharged and cause again tried. 434. In felony, defendant must be present. In misdemeanor, verdict may be rendered in his absence. 435. Manner of taking the verdict. 436. Verdict may be general or special. 437. General verdict. 438. Special verdict. 439, 440. Special verdict, how rendered. 441. Special verdict, how brought to argument. 442. Judgment thereon. SECTION 443. When special verdict defective, new trial to be ordered. 444. Upon indictment for crime, consisting of different degrees, jury may convict of any degree, or of any attempt to commit the crime. 445. In other cases, jury may convict of any offense necessarily included in that charge. 446. On indictment against several, jury may render a verdict as to some, and the cause be again tried as to the others. 447, 448. In 'what cases court may direct a reconsideration of the 449. When judgment may be given upon an informal verdict. 451. Recording the verdict. 452. Defendant, when to be discharged or detained after acquittal. 453. Proceedings upon general verdict of conviction, or a special verdict. 454. When defendant acquitted on the ground of insanity, the fact to be stated with the verdict. Commitment of defendant to state lunatic asylum. § 433. When the jury have agreed to be brought into court and their names called. If all do not appear, jury to be discharged and cause again tried.-When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that event, the cause may be again tried, at the same or another term. § 434. In felony, defendant must be present. In misdemeanor, verdict may be rendered in his absence.-If the indictment be for a felony, the defendant must, before the verdict is received, appear in person. If it be for a misdemeanor, the verdict may be rendered in his absence. See sections 297 and 427, ante. The reception of the verdict, upon the trial of an indictment for a felony, when the defendant's counsel is not present, is not an error requiring a reversal, in the absence of anything indicating that the defendant is preju diced thereby. People v. Wilson, 15 St. Rep., 503; 109 N. Y., 358. See Safford v. People, 1 Park, 474; Son v. People, 12 Wend., 344; People v. Perkins, 1 id., 91; People v. Wilkes, 5 How., 105. § 435. Manner of taking the verdict.-If the jury appear, they must be asked by the court or the clerk, whether they have agreed upon their verdict; and if the foreman answer in the affirmative, they must, on being required, declare the same. § 436. Verdict may be general or special.-The jury may either render a general verdict, or when they are in doubt as to the legal effect of the facts proved, they may, except upon an indictment for libel, find a special verdict. See notes under sections 437 and 438, ante. See section 10 of Penal Code. The provisions of section 10 of the Penal Code must be construed with, and is qualified and restricted by, the provisions of this and the following section of the Code of Criminal Procedure. People v. Rugg, 98 N. Y., 537, 551; affg 21 W. Dig., 84. Upon the trial of an indictment charging murder in the first degree, a general verdict of guilty is proper. Id. The jury are to render a general verdict, except when they are in doubt as to the legal effect of the facts proved, in which case they may render a special verdict. People v. Taylor, 3 N. Y. Cr., 302. § 437. General verdict.-A general verdict upon a plea of not guilty is either "guilty" or "not guilty;" which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or acquittal of the same offense, it is either "for the people," or "for the defendant." General verdict.-A verdict "for the people," rendered on the sole issue of former conviction, is a general verdict. People v. Trimble, 38 St. Rep., 998; 60 Hun, 365; 15 N. Y. Supp., 60. A general verdict of guilty is a finding of the truth of all the material averments in the indictment. People v. Bork, 1 N. Y. Cr., 393. What sentence proper.-Where, under proper instructions, a general verdict of guilty under the whole indictment is rendered, a sentence for the highest offense charged is proper. Hawker v. People, 75 N. Y., 487. Verdict on one count.-The finding specifically of a verdict of guilty upon one count is equivalent to a verdict of not guilty of the crime charged in the other counts of the indictment. People v. McCarthy, 18 St. Rep., 267; 110 N. Y., 314; People v. Dowling, 84 id., 478; Guenther v. People, 24 id., 100. Good count.-An indictment containing one good count will sustain a general verdict of guilty, though there may be other defective counts therein. People v. Davis, 56 N. Y., 95. If one of several counts in an indictment is good, it is sufficient to sustain a conviction under a general verdict of guilty. People v. Dimick, 11 St. Rep., 739: 107 N. Y., 13, 30; People v. Willett, 1 St. Rep. 384; 102 id., 251; Hope v. People, 83 id., 418; Phelps v. People, 72 id., 335; People v. Davis, 56 id., 95. A general verdict of guilty under an indictment will be sustained if some of the counts are good, though others are defective. People v. Willett, ante. Upon a general verdict of guilty, or upon a plea of guilty of all the counts of an indictment, the court may give a general judgment, which will be upheld as valid, if applicable to any good count of the indictment. Pollusky v. People, 11 Hun, 392. Continuance.-A general verdict of guilty, upon a trial of an indictment, containing averments of continuance, for a nuisance in obstructing a public highway, is error if there is no evidence of continuance. People v. Livingston, 27 Hun, 105; 63 How., 242. Former conviction, etc.-Upon the latter verdict, prescribed by this section, the only appropriate judgment is respondeat ouster. People v. Trimble, 42 St. Rep., 718; 131 N. Y., 122; aff'g 38 St. Rep., 998; 60 Hun, 365; 15 N. Y. Sup., 60. See People v. Rugg, 98 N. Y., 537, 551; People v. Burch, 1 St. Rep., 751 ; 5 N. Y. Cř., 32; People v. Taylor, 3 id., 302. § 438. Special verdict.-A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact, as established by the evidence, and not the evidence to prove them; and these conclusions of fact must be so presented, as that nothing remains to the court, but to draw from them conclusions of law. Special. A verdict, which is a finding of the facts and presents the conclusions of facts, as established by the evidence as construed by the jury, is special. People v. Hale, 1 N. Y. Cr., 535. Upon the trial of a charge of assault and battery, a verdict that the defendant was not guilty of a criminal assault or intent to injure," is a special verdict. Id. Insufficient.-A special verdict cannot be enlarged by intendment. Miller v. People, 25 Hun, 473. Where, upon the trial of an indictment for feloniously receiving stolen property, the special verdict does not find that the defendant_received the goods feloniously, it is not sufficient to sustain a conviction. Id. Effect of.-Where, on the trial of an indictment containing different counts, there is a specific verdict of guilty on one count and the verdict is silent as to the other counts, it is equivalent to an acquittal on the latter counts. People v. Dowling, 84 N. Y., 478. See People v. Taylor, 3 N. Y. Cr., 302. § 439. Special verdict, how rendered.-The special verdict must be reduced to writing, by the jury or in their presence, entered upon the minutes of the court, read to the jury, and agreed to by them, before they are discharged. See People v. Taylor, 3 N. Y. Cr., 302. § 440. Special verdict, how rendered.-The special verdict need not be in any particular form, but is sufficient, if it present intelligibly the facts found by the jury. See People v. Hale, 1 N. Y. Cr., 535. § 441. Special verdict, how brought to argument.-The special verdict may be brought to argument by either party, upon five days' notice to the other, at the same or another term of the court; and upon the hearing thereof, the counsel for the defendant may conclude the argument. § 442. Judgment thereon.-The court must give judgment upon the special verdict as follows: 1. If the plea be not guilty, and the facts prove the defendant guilty of the offense charged in the indictment, or of any other offense of which he could be convicted, under that indictment, as provided in sections 444 and 445, 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 same offense, the court must give judgment of conviction or acquittal, according as the facts prove or fail to prove the former conviction or acquittal. Application. This section applies only to a judgment in case of a special verdict. People v. Connor, 48 St. Rep., 30; 65 Hun, 392; 8 N. Y. Cr.. 447. Subd. 2 of this section relates wholly to the case of a special verdict in which the jury merely find the facts, and does not refer to the case of a general verdict. People v. Trimble, 42 St. Rep., 718; 131 N. Y., 122. Effect of verdict.-Where the defendant interposed the pleas of not guilty and of former acquittal to the indictment, a verdict of “guilty as charged in the indictment," does not show that the latter plea was passed upon by the jury. People v. Burch, 1 St. Rep., 751 ; 5 N. Y. Cr., 32. § 443. When special verdict defective, new trial to be ordered.If the jury do not, in a special verdict, pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact from the evidence, as established to their satisfaction, the court must order a new trial. § 444. Upon indictment for crime consisting of different degrees, jury may convict of any degree, or of any attempt to commit the offense.-Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime. See section 390, ante; section 35 of Penal Code. Before Code.-At the time of the adoption of this Code, the rule of the common law, in this state, was that the prosecution was never allowed to fail, because all the alleged facts and circumstances were not proved, if such as were proved made out a crime, though of an inferior degree. People v. McDonald, 17 St. Rep., 494; 49 Hun, 69; 1 N. Y. Supp., 704. This section continues and preserves the provisions of the Revised Statutes. (2 R. S. [3d. Ed.], 789, section 30.) Id. Inferior degree.-The charge of the crime in the first, permits conviction in the second, degree. People v. Sullivan, 4 N. Y. Cr., 197. The jury may find the defendant guilty of one of the inferior degrees of the crime charged in the indictment. People v. Taylor, 3 N. Y. Cr., 302. The accused may be convicted of an inferior grade of the same offense charged, growing out of the same transaction counted on, accordingly as the case may be disclosed by the proof. People v. Palmer, 6 St. Rep., 341; 43 Hun, 404. The elements, which constitute the less degree must themselves be proved. People v. Downs, 29 St. Rep., 117; 56 Hun, 11. Homicide.-Where the defendant is charged in the indictment with murder in the first degree and pleads to such charge, it is the duty of the jury first to determine whether he is guilty of that charge. People v. Wilson, 109 N. Y., 357; 15 St. Rep., 503. It is only after they have found him not guilty upon this charge, that they are authorized, under this section, to find him guilty of any inferior degree of horaicide. Id. An indictment for murder in the first degree, in the common-law form, permits a conviction of manslaughter in the first degree upon a plea of guilty to the latter offense. People v. McDonnell, 92 N. Y., 657; 1 N. Y. Cr., 366. It is not necessary to aver in the indictment the facts and circumstances which, if proven, would constitute the less crime. Id. These are matters of evidence for the benefit of the accused. Id. Larceny. This section allows a conviction for grand larceny in the second degree, under an indictment for grand larceny in the first degree. People v. McCallam, 3 N. Y. Cr., 199. A prisoner, indicted for grand larceny, may be convicted of petit larceny. People . McTameney, 30 Hun, 505; 1 N. Y. Cr., 437; 17 W. Dig., 492; 13 Abb. N. C., 55; 66 How., 70. Allegation and proof-The accused cannot be convicted of any other character of offense than that charged against him in the indictment. People v. Palmer, 6 St. Rep., 341; 43 Hun, 404; Dedim v. People, 22 N. Y., 178; Keefe v. People, 40 id., 348. Where the proof establishes conclusively all the elements of burglary in the first degree, the defendant is not entitled to a charge that the jury may convict of a misdemeanor under section 505 of the Penal Code. People v. Meegan, 5 St. Rep., 743 ; 104 N. Y., 531 ; 5 N. Y. Cr., 523. Acquittal on certain counts.-The omission of the jury to render a verdict upon certain counts of an indictment is equivalent to an acquittal on those counts. People v. McDonald, 17 St. Rep., 494; 49 Hun, 69; 1 N. Y. Supp., 704. Guilty on all the counts.-Effect of jury finding prisoner guilty on all the counts of an indictment. People v. Emerson, 20 St. Rep., 19; 6 N. Y. Cr., 158; 5 N. Y. Supp., 374. See People v. Cooper, 3 N. Y. Cr., 119. § 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. |