Ordinarily, where the place of trial is changed, an adjoining county should be selected; but there is no express limitation, and if the necessity which should require any change should call for a more remote county, that should be selected.1 Where a prosecution for crime is transferred from the county where the venue is laid to another county, the expenses of the trial of the indictment shall be a charge upon the county from which the same was transferred." In indictments for a libel a special provision of the statute exists, by which the defendant may in all cases claim the right by motion to the Supreme Court in the district where he resides, to be tried in the county where the libel was printed, on executing a bond to the complainant in the penal sum of not less than two hundred and fifty nor more than one thousand dollars, in the discretion of the court, conditioned, in case the defendant be convicted, for the payment of all the complainant's reasonable and necessary travelling expenses, incurred in going to and from his place of residence and the place of trial, and the necessary expenses in attendance on the trial in the prosecution of the defendant; such bond is to be signed by two sufficient sureties, to be approved by any judge of any court of record exercising criminal jurisdiction. It is further provided that nothing in the above act shall abridge, or in any manner affect the right or power of any competent court to change the place of trial of indictments for libel in the manner now provided by law.3 SECTION III. OF THE PROCEEDINGS FROM AND INCLUDING THE TRIAL, DOWN TO AND INCLUDING THE VERDICT. Section LXXXV.-OF THE TRIAL OF THE INDICTMENT. LXXXVI.-CERTAIN PROVISIONS IN CIVIL CASES ADOPTED ON THE TRIAL OF THE INDICTMENT. LXXXVII.-DEFENDANT TO BE PRESENT AT TRIAL. LXXXVIII.-OF SEPARATE TRIALS BY DEFENDANTS JOINTLY INDICTED. LXXXIX.-PROCEEDINGS WHEN PRISONER IS INSANE AT THE TRIAL. LXXXX.-OF THE RIGHT OF TRIAL BY JURY. LXXXXI.-OF THE RETURN AND SUMMONING OF JURORS. LXXXXII. Of the qualificaTIONS OF JURORS, AND DISCHARGING AND EXCUSING THEM FROM JURY DUTY. LXXXXIII.-CLERK'S ADDRESS TO PRISONER BEFORE CALLING THE JURY. LXXXXV.-OF THE KINDS OF CHALLENGE ALLOWED TO THE PEOPLE. 1. PROPTER HONORIS RESPECTUM. 2. PROPTER DEFECTUM. a. ALIENAGE. b. PROPERTY QUALIFICATION. c. PROPERTY QUALIFICATION IN CERTAIN COUNTIES. d. WANT OF MENTAL CAPACITY, ETC. e. OTHER STATUTORY DISQUALIFICATIONS. 3. PROPTER AFFECTUM. a. BIAS ON THE JUROR'S MIND, ON THE QUESTION WHETHER OR NOT THE PRISONER IS GUILTY. b. BIAS WHICH COMES FROM RELATIONSHIP. C. THAT THE JUROR HAS A PECUNIARY OR OTHER INTEREST IN THE EVENT OF THE ACTION. d. THAT THE JUROR HAS PASSED UPON THE SAME QUESTION WHILE SERVING IN SOME OTHER CAPACITY. 6. BIAS FROM PARTICULAR OPINIONS CONCERNING THE LAW. f. SOCIAL AND CIVIL CONNECTIONS. g. A GENERAL BIAS AGAINST THE PRISONER. 4. PROPTER DELICTUM. LXXXXIX.-CHALLENGES, WHEN MADE. C.-CHALLENGES, HOW MADE. 1. TO THE ARRAY. 2. THE CHALLENGE TO THE POLLS. CI.-CHALLENGE TO THE ARRAY, HOW DISPOSED OF. CII.-CHALLENGE TO THE POLLS, HOW DISPOSED OF. CIII.-OF THE SUMMONING OF TALESMEN AS PETIT JURORS. CIV.-SWEARING THE JURORS. CV.-ORDERING WITNESSES TO WITHDRAW. CVI.-COMPELLING THE DISTRICT ATTORNEY TO ELECT ON WHICH OF SEVERAL COUNTS IN THE INDICTMENT HE WILL PROCEED. CVII.-OF EXCEPTIONS BY THE DEFENDANT UPON THE TRIAL. CVIII.-OPENING OF THE CASE BY THE DISTRICT ATTORNEY. CIX.-OF THE EXAMINATION OF THE WITNESSES FOR THE PROSECUTION. CXI. OF THE OPENING OF THE CASE BY THE DEFENCE, AND THE WITNESSES CXV-THE JUDGE'S CHARGE TO THE JURY. Section CXVIII.-OF DISCHARGING THE JURY IN CASE OF THEIR INABILITY TO AGREE. CXX.-OF THE VERDICT. CXXI.-VERDICT ON SEVERAL COUNTS OF THE INDICTMENT. CXXII. VERDICT AGAINST ONE OF SEVERAL DEFENDANTS. CXXIV.-Verdict shall nOT BE FOR AN ATTEMPT, WHEN OFFENCE IS PERPE TRATED. CXXV.-SPECIAL VERDICT. CXXVI. POLLING THE JURY. CXXVII.-MOTION IN ARREST OF JUDGMENT. § 85. OF THE TRIAL OF THE INDICTMENT. Having already treated of the proceedings had in the court anterior to the arrest and arraignment of the defendant, and of the subsequent proceedings had after indictment duly found by the grand jury and presented to the court, we have now arrived at a stage of the proceedings where the defendant is put upon his trial before a petit jury. All issues of fact are to be tried by a jury in the county where the indictment was found, unless, for special causes, the indictment is removed for trial into some other county.1 We shall, in the following pages, treat of the various proceedings which may be taken by either party from the time the defendant is placed upon his trial down to the sentence and judgment of the court. We shall first treat of the organization and empanneling of the jury and subsequently of the action of the counsel for the respective parties and of the court and jury during the trial. It is not within the intention of the author to point out all the irregularities and errors which may be committed during the trial, but simply to mark out the course of practice to be adopted upon the trial. Such irregularities and errors which have been cited in the books as constituting sufficient grounds for a new trial, are too numerous to be embraced in a work of this kind, and are in themselves, if fully discussed, sufficient to comprise a separate work. § 86. CERTAIN PROVISIONS IN CIVIL CASES ADOPTED ON THE TRIAL OF INDICTMENTS. The proceedings prescribed by law in civil cases, in respect to the empanneling of juries, the keeping them together, and the manner of rendering their verdict, are to be had upon trials of indictments, and the provisions of law in civil cases relative to 12 R. S., 733, § 1. See ante. compelling the attendance and testimony of witnesses, their exami. nation, the administration of oaths and affirmations, and proceedings as for contempts to enforce the remedies and protect the rights of parties, also extend to trials and other proceedings on indictments, so far as they may be, in their nature, applicable thereto, subject to the provisions contained in any statute.1 § 87. DEFENDANT TO BE PRESENT AT TRIAL. No person indicted for any felony can be tried unless he be personally present during such trial; nor can any personindicted for any other offence be tried unless he be present, either personally or by his attorney, duly authorized for that purpose; and every person indicted, shall be admitted to make any lawful proof by competent witnesses, on oath, or by other lawful testimony.2 The general authority of an attorney does not extend to the case above provided for; there must be given him before trial, a special authority and waiver.3 It is said to be a principle pervading the entire law of procedure in criminal causes, that after an indictment found, nothing shall be done in the causes in the absence of the prisoner. In felonies, the prisoner has not the power, either by himself or attorney, to waive the right to be personally present during the trial.5 § 88. OF SEPARATE TRIALS BY DEFENDANTS JOINTLY INDICTED. At the common law it was not the right of the defendant, where jointly indicted with another, to demand a separate trial, yet such favor lay in the discretion of the judge on cause being shown him, and the doctrine applied alike in cases of felony and misdemeanor. The Revised Statutes contain the following provision upon this subject: When one or more defendants shall be jointly indicted for any felony, any one defendant requiring it shall be tried separately. 12 R. S., 735, § 16. 2 R. S, 735, § 15. Peo. v. Petry, 2 Hilton, 523; Peo. v. Wilkes, 5 How., 105. 1 Bish. on Cr. Pro., § 682. Prine v. Com., 6 Harris, Pa. 103-104. In other cases, defendants jointly indicted shall be tried separately or jointly, in the discretion of the court.1 Where two or more persons are jointly indicted for a felony, and demand separate trials, they have not a right to elect which defendant shall be tried first. The order of the trials in such case is within the control of the district attorney, subject to the direction of the court, and, as a general rule, the court should not interfere to compel the district attorney in regard to it.2 Whether defendants indicted jointly for a misdemeanor shall be allowed separate trials is in the discretion of the judge before whom the trial takes place.3 This discretion may be exercised by an order made on the motion of the district attorney, as well as on that of the prisoner's counsel. If, in the opinion of the district attorney, public justice requires a joint trial in misdemeanors, the court will not direct separate trials, except under very special circumstances. And if it seems best to consist with the advancement of justice, as if the district attorney is prepared to try one prisoner and has been unable to procure witnesses against the other defendant, and if compelled to try jointly, there is danger that the other will escape, the court may, in the exercise of its discretion, allow a separate trial on the motion of the public prosecutor. Where defendants are tried jointly, and there is a challenge for cause to a juror by one defendant, it is plain that any disqualification of the juror to serve as against one of the prisoners, should require him to be rejected as to both, since in the nature of this service he could not sit for the trial of one without sitting also for the trial of the other.5 It also follows that if one of the prisoners challenges a juror peremptorily, and the other does not challenge him, he is equally to be removed from the panel.6 Where separate trials are had, no one of the persons jointly indicted can be a witness for any other one until the case is disposed of either by nolle prosequi, acquittal or otherwise." 1 2 R. S., 735, § 22. Peo. v. McIntyre, 1 Park., 371; Id., 9 N. Y. (5 Seld.), 38; 19 Wend., 377. Peo. v. Stockham, 1 Park., 424; 7 Cow., 369; Id., 108. ' 1 Park., 424. 1 Bish. Cr. Pro., § 966. Id.; 12 Wheat., 480; 4 Mason, 159, S. C.; 6 Ohio, 86; 4 Yerg., 246. Peo. v. McIntyre, 4 Park., 371. |