384. If the defendant be in custody, and the removal be to the court of oyer and terminer of another county than that where the indictment is pending, the order shall 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 shall be forthwith removed accordingly. § 385. An order for the removal of the action shall be of no effect, unless a certified copy thereof be filed, as required by section 383, before a juror shall be sworn to try the indictment. The court to which it is removed, shall thereupon proceed 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. § 386. 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 offence. § 387. 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 376. § 388. If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant; but if for a felony, he must be personally present. CHAPTER II. Formation of the trial jury. § 389. The jurors duly drawn and summoned for the trial of issues of fact, at a circuit court, shall be the jurors for the trial of issues of fact upon indictments at the court of oyer and terminer held at the same time; and those summoned for the trial of issues of fact, in civil actions, at a mayors' or recorders' court, shall in like manner be the jurors for the trial of issues of fact upon indictments, at those courts respectively. § 390. A jury shall be drawn for the courts of sessions, (except in the city and county of New-York,) only when ordered by the court, or by the supervisors of the county. § 391. The order may require, that a jury be drawn for all or any of the terms of the court, or for a particular term; and must specify the number of jurors to be drawn, not exceeding thirty-six, and the name of the court for which they are to be drawn. § 392. A misdescription, however, of the title of the court, shall not affect the validity of the order, if it can be plainly understood therefrom what court is intended. § 393. The order, if made by the court, shall be entered in its minutes, at least thirty days before the term for which the jury is ordered. If made by the board of supervisors, a copy thereof, certified by the clerk of the board, shall be delivered to the clerk of the county, and filed in his office, at least thirty days before the term; and when so filed, shall be conclusive evidence of the authority for the drawing of the jury. § 394. When the jury is so ordered, it shall be drawn from the box kept by the clerk of the county, containing the names of jurors for the trial of issues of fact, which is in this code designated as the trial jury box. § 395. A jury to consist of eighty-four persons shall be drawn from the trial jury box, kept by the clerk of the city and county of New-York, for each term of the court of sessions in that city and county. § 396. A judge of the supreme court elected in the first judicial district, if he think it necessary, may, by an order in writing, to be filed, at least thirty days before the court, with the clerk of the city and county of New-York, direct an additional number of jurors to be summoned for a court of oyer and terminer in that city and county. § 397. The provisions of sections 221 to 227, both inclusive, and of sections 229, 230, 231, 232, 234, and 237, in respect to grand jurors, shall apply to trial jurors, substituting the words, trial jurors or jury, in place of the words, grand jurors or jury. § 398. At the opening of the court, the clerk shall prepare separate ballots, containing the names of the persons returned as jurors, with their places of resi dence, and occupations respectively, which shall be folded each in the same manner, as near as possible, and so that the same shall not be visible, and shall deposit them in a sufficient box. § 399. When the indictment is called for trial, and before drawing the jury, either party may require the names of all the jurors in the panel to be called, and that an attachment issue against those who are absent; but the court may, in its discretion, wait or not, for the return of the attachment. § 400. Before the name of any juror is drawn, the box shall be closed, and shaken, so as to intermingle the ballots therein. The clerk shall then, without looking at the ballots, draw them from the box, through a hole in the lid, so large only as conveniently to admit the hand. § 401. When the jury is completed, the ballots containing the names of the jurors sworn, shall be laid aside, and kept apart from the ballots containing the names of the other jurors, until the jury so sworn be discharged. § 402. After the jury are so discharged, the ballots, containing their names, shall be again folded, and returned to the box; and so on, as often as a trial shall be had. § 403. If a juror be absent, when his name is drawn, or be set aside, or excused from serving on that trial, เ |