The above provision of the statute has been amended by further providing that the clerk may keep a box containing the names of all persons returned as jurors who may reside in the city or town. where the court is directed to be held, and that when there shall be a deficiency in the number of jurors, the court may order the sheriff, in the presence of the court, to draw from such box as many persons as shall be sufficient, and as the court shall direct. The act further provides that the court may, by the consent of the parties, order the sheriff to summon from the bystanders or from the county at large, so many persons qualified to serve as jurors, as shall be necessary to make the full panel of jurors on the trial. The provisions of the above amendment do not apply to the city and county of New York, or to the county of Kings.1

And by subsequent legislation it is further provided that nothing in the above act is to be construed to repeal, or in any wise affect the former provisions of the statute in relation to the summoning of talesmen.2

When such a deficiency occurs in a criminal case, the number of additional persons to be summoned rests in the sound discretion of the court before which the indictment is pending.3

§ 104. SWEARING THE JURORS.

The jurors who are not challenged, or who having been challenged and tried are found indifferent, are then sworn by the clerk. In capital cases the names of the jurors are called separately by the clerk, and the following oath is administered to each of them:

"You shall well and truly try and true deliverance make between the people of the State of New York and A B, the prisoner at the bar, whom you shall have in charge, and a true verdict give according to the evidence, so help you God."

As each juror is named and before he is sworn, or rather before the oath or affirmation is tendered him, the challenge may be made as before mentioned.

In cases of misdemeanors the jury are sworn at once, without administering the oath separately. The oath, in the last mentioned cases, is in the following form:

'Laws 1861, ch. 210, p. 528.

'Laws 1867, ch. 494, vol. 1, p. 1282; 2 R. S., 420, §§ 120, 121.

Peo, v. Colt, 3 Hill, 432.

"You shall well and truly try this issue of traverse between the people of the State of New York and A B, the defendant, and a true verdict give therein, according to the evidence, so help you God."

In civil cases it is the practice to administer a general oath to the petit jurors at the opening of the court; but in criminal cases they are sworn in each case in which they are called.1

§ 105. ORDERING WITNESSES TO WITHDRAW.

Either party, immediately after the jury are empaneled, or indeed at any time during the trial, may apply to have the witnesses for the opposite party, sent out of court, and the court may make an order accordingly.2

And if the witness do not withdraw when ordered, or afterwards return into court before he is called for, and is present during the examination of some other witness, it is discretionary with the judge whether he will allow him to be examined or not.3

The strict rule of practice has been said to be that the witnesses, on the part of the prisoner, should not be in court when those on the part of the State are examined; and in this State it has been held that when, on the trial of a capital case, several witnesses are to be examined to the same point, the court may, in its discretion, require all such witnesses, except the one under examination, to leave the room during such examination.5

The rule has also been laid down in this State that, in cases of misdemeanors, the court, at the request of the prosecutor or defendant, will direct the witnesses not under examination to be separated from those that are."

The prosecution as well as the accused may demand the exclusion of witnesses from the court room during the trial, for the purpose of questioning each in the absence of others; and the granting or denying of such motion is left to the discretion of the presiding judge, and this discretion will not be interfered

་

' Vide 6 Wend., 550.

1 Arch. Cr. Pr., § 167.

• Id.; Parker v. McWilliam, 6 Bing., 683; R. v. Coley, 1 Moody & M., 329 State v. Tellers, 2 Halst., 220.

Peo. v. Green, 1 Park., 11.

Peo. v. Duffy, 1 Whee. Cr. Cases, 123.

Johnson v. The State, 14 Ga., 55.

with unless there is such a manifest departure from propriety as may result in defeating the ends of justice.1

An attorney for the party will be excepted from the order, and where he was mentioned as one of the witnesses who had been subpoenaed, express permission was obtained for him to remain.2

Where witnesses are ordered to withdraw, each party furnishes his list of them to the sheriff, whose duty it then becomes to take charge of them, and see that they are kept out of the hearing of each other's examination, and if the order be violated he will then know it and apprise the party. If the sheriff neglects his duty, the party will not be responsible. If certain of the witnesses be not in attendance, but are coming in, the party in whose behalf they are to testify, must either put their names on the list, or at his peril see that they do not violate the order by coming into court before they are called to testify. If there be no pretence that the newly arrived witnesses were in court, and hearing any of the testimony, then it is no objection that their names were not furnished to the sheriff, and they may, notwithstanding, be sworn. Those absent when the order to withdraw is made, cannot be embraced by it. If the party do not furnish a list to the sheriff, he is responsible that the witnesses present shall obey the order to withdraw.3

In general, when a witness has been ordered to retire from the court room, but remains in court, he will not be examined. But on the whole, it seems that although the right to exclude witnesses for willful disobedience of the order be well established, yet the judges are quite cautious of exercising the power. The reason probably is, because a party may in that way, without any fault of his own, be put in very great hazard by losing important testimony; he cannot prevent the misbehavior of the witness.5

The necessity for the separation of witnesses occurs more frequently in cases where an alibi is interposed as a defence, for the object of the separation is to afford the means of discovering discrepancies in the different accounts, which (if not true) the witnesses will give of the same transaction.

1

Nelson v. State, 2 Swan, 237.

'Everett v. Lowdham, 5 C. & P., 91.

1 Arch. Cr. Pr., § 167; note cited as Anon., 1 Hill, 254, et seq.

24 Miss., 602; 18 Ohio, 99; 6 Bing., 683.

1 Arch. Cr. Pr., § 167, note; 4 C. & P., 585; 3 Murph., 487-490-493; 4

Moore & Payne, 483; 1 M. & M., 323.

.

is omitted it cannot be done in reply. No new question can be put in reply unconnected with the subject of the cross-examination, and which does not tend to explain it. If a question as to any material fact has been omitted upon the examination in chief, the usual course is to suggest the question to the court, which will exercise its discretion in putting it to the witness.1 This general rule is adhered to with great strictness in criminal cases.2 When the examination is closed and the witness dismissed from the stand, it is a matter resting in the discretion of the court which receives the testimony to allow of a further examination.3

The same general rules, in relation to leading questions, improper evidence, &c., which are applicable in civil actions govern also criminal trials, and the witness has also the privilege of refusing to answer if he will thereby criminate himself, subject him to a penalty, or have a tendency to degrade his moral character; but it is the witness's privilege, and not the right of the party against whom he is called, to object to his giving evidence to criminate himself, and the court need not, upon the objection of such party and independently of any objection of the witness, inform the latter of the rule of law that he is not obliged to crimináte himself;5 and if the witness waives his privilege, and testifies to a part of a transaction in which he was criminally concerned, he is obliged to state the whole."

It is for the court to determine whether a direct answer to a question has a tendency to criminate a witness."

Before the witness is sworn upon trials for felony the following oath is administered to him by the clerk:

"The evidence you shall give between the people of the State of New York and the prisoner at the bar, shall be the truth, the whole truth, and nothing but the truth, so help you God.”

Upon the trial for a misdemeanor the following oath is administered to the witness:

11 Stark. Ev., 150.

• Rex v.

621.

Stimpson, 2 C. & P., 415; Rex v. Belgeby, 4 C. & P., 218; 2 Russ.,

Peo. v. Mather, 4 Wend., 250.

Ward v. Peo., 3 Hill, 395; 19 Wend., 569.

Com. v. Shaw, 4 Cush, 594.

• State v.

Foster, 3 Foster (N. H.), 348.

Peo. v. Mather, 4 Wend., 231; Thatch. Cr. Cases, 146.

"The evidence you shall give in this issue of traverse between the people of the State of New York and A B, the defendant, shall be the truth, the whole truth, and nothing but the truth, so help you God."

§ 110. DISCHARGING ONE OF SEVERAL DEFENDANTS.

Whenever two or more persons shall be included in the same indictment, and it shall appear that there is not sufficient evidence to put any defendant on his defence, it shall be the duty of the court to order such defendant to be discharged from such indictment before the evidence shall be deemed to be closed.1

§ 111. OF THE OPENING OF THE CASE BY THE DEFENCE, AND THE

WITNESSES FOR THE PRISONER AND OF WITNESSES IN REPLY.

After the district attorney has closed his examination of the witnesses for the people and rested his case, as it is called, the counsel for the prisoner usually addresses the jury, stating briefly the facts constituting his defence; he then calls and examines his witnesses in support of the defence, and the same general rules in relation to evidence, leading and improper questions, &c., are applicable, as upon the trial of civil actions.

If the defendant set up any defence, and call witnesses to prove it, the prosecutor may then give evidence in reply. This evidence must be strictly confined to the defence; the prosecutor will not be allowed to wander from that, even for the purpose of giving evidence on the original charge.

2

Opening the case for new testimony on a trial for murder, after both parties have closed, rests in the discretion of the court.3

§ 112. THE ADDRESSES TO THE JURY BY THE COUNSEL. After the evidence has been all introduced by the respective parties, the counsel for the prosecution and for the defendant may, by agreement, submit the cause to the jury for their deliberation and verdict, without argument, or they may address the jury at length in such observations and arguments as may have a bearing upon the cause on trial. These addresses to the jury

3

1 2 R. S., 735, § 21.

1 Arch. Cr. Pr., § 170.

Stephens v. Peo., 4 Park., 396; Kalle v. Peo., Id., 591.