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are commonly called the summing up of the case, although that term in England is applied to what is known here as the judge's charge to the jury.1

Where the jury are addressed, the counsel for the defendant, when he has called and examined all his witnesses, proceeds to address the jury. Where there are several defendants and they are separately defended, the order in which the counsel for the defence are to address the jury, is not very clearly settled; but it has been said that if the counsel cannot agree among themselves as to the course to be adopted, it is for the court to call them in the order in which the prisoners are named in the indictment.2

Whenever any witnesses are called for the defence, or any documents put in on behalf of the defendant at any time in the course of the trial, the counsel for the prosecution will have a right at the conclusion of the defence to address the jury in reply, and this is so, though the evidence brought for the defence be only as to character.3

The limits within which counsel are to be restrained in argument, are matter of discretion, and the ruling of the judge on that subject, cannot be reviewed on exceptions.4

§ 113. OF THE ADJOURNMENT OF COURT DURING THE TRIAL. If the trial cannot be concluded in one day the court will adjourn it to the next day, or if that happen to be Sunday, until the trial is completed.5 The Revised Statutes declare that no court shall be open for the transaction of any business on Sunday, unless it be for the purpose of receiving a verdict or discharging a jury, and every adjournment of a court on Saturday shall always be to some other day than Sunday, except such adjournment as may be made after a cause has been submitted to a jury.

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The court may also adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court."

1 Arch. Cr. Pr., § 171.

2 R. v. Barber, 1 C. & K., 434; 47 E. S. L. R.

Ros. Cr. Ev., 6 Am. Ed., 202; 34 E. C. L. R.; 8 C. & P., 20; 1 Arch. Cr. Pr., 170.

Peo. v. Finnegan, 1 Park., 152.

1 Arch. Cr. Pr., § 170.

R. S., 275, § 16.

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4 Blac. Com., 361; 3 St. Tr., 731; 4 Id., 231, 455-485.

At the adjournment of court the crier makes the following proclamation:

"Hear ye, hear ye, hear ye! All manner of persons who have any further business to do at this court of oyer and terminer (or court of sessions), may depart hence and appear here again to-morrow morning at o'clock, to which time this court is

adjourned.'

At the re-assembling of the court, at the adjourned hour, the crier re-opens the court by the following proclamation:

"Hear ye, hear ye! All manner of persons who have been adjourned over to this hour, and have any further business to do at this court of oyer and terminer (or court of sessions), may draw near and give their attendance and they shall be heard."

Where an adjournment of the court is had, in cases where the jury is kept together and not allowed to separate, they are placed in the custody of an officer, to whom the clerk administers the following oath:

"You shall retire with the jury to some convenient room to be furnished by the sheriff; you shall not suffer any person to speak to them, nor speak to them yourself in relation to this trial, and return with them at the order of the court, so help you God."

§ 114. OF THE SEPARATION OF THE JURY DURING THE TRIAL. Upon the trial of misdemeanors it is within the discretion of the presiding judge to permit the jury to separate and disperse at the adjournment of the court. In such cases, however, the judge ought to caution the jury against holding conversation with any person respecting the cause, or suffering it in their presence, or reading newspaper reports or comments regarding it or the like.2 As regards their separation upon trials for felony the rule is different. The Supreme Court at general term held that, in criminal cases of a higher grade than misdemeanors, and especially in capital cases, a separation of the jury, with or without the leave of the court for however short a time, will be fatal to a verdict against the prisoner, unless it is shown affirma

Rex v. Wolf, 1 Chit., 401; Rex v. Kinnear, 2 B. & Ald., 462; Eastwood v. Peo., 3 Park., 25.

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1 Bish. Cr. Pro., § 825; 5 Casey, 323, 327; Stephens v. The Peo., 19 N. Y., 555.

tively, on the part of the prosecution by the clearest evidence and beyond a reasonable doubt, that no injury to the prisoner could have occurred in consequence of the separation.1

In the case cited above, which was a capital case, after the testimony was closed, several of the members of the jury, while walking out for exercise, by leave of the court, and in the charge of an officer, visited and examined the place where the homicide occurred, and in regard to which the witnesses had testified, and it was held to be a sufficient reason for granting a new trial.2

The Court of Appeals, however, have held that it is not error in law in a capital trial for the judge, with the assent of the prisoner, to permit the jury to separate from time to time before the charge is given them and they return to deliberate upon their verdict.3

§ 115. THE JUDGE'S CHARGE TO THE JURY.

After the counsel have concluded their addresses to the jury, or the cause has been submitted to the jury without argument from the counsel, the presiding judge addresses the jury. He usually first states the substance of the charge against the prisoner; then, if necessary, explains the law upon the subject; he next reads the evidence or the substance of it, which has been adduced in support of the charge, making occasionally such observations as may be necessary to connect the evidence to apply it to the charge, and to render the whole plain and intelligible to the jury; he then states the defence, and the evidence given upon the part of the defendant, and usually concludes by telling the jury that, if upon considering the whole of the evidence, they entertain a fair and reasonable doubt of the guilt of the prisoner, they should give the prisoner the benefit of that doubt, and acquit him.4

The counsel of either party may request the judge to instruct the jury upon a question of law fairly arising in the case. But courts are under no obligation to listen to abstract propositions

Eastwood v. Peo., 3 Park., 48.

2 Id.

* Stevens v. The Peo., 19 N. Y., (5 Smith) 549.

1 Arch. Cr. Pr., § 171.

Safford v.

Peo., 4 Park., 480; 5 Wend., 289; 3 Barb., 548; 1 Burr. Pr.,

456.

from counsel, and are not bound to explain them upon the trial of causes. It is enough that they should respond to objections made by either party to the admission of evidence upon the trial, and give in charge to the jury the law which, under a given state of facts, governs the case.1

In practice, the requests to the judge to charge the jury are in general reduced to writing by the counsel making the request, and the judge either charges as requested, or declines, or may charge according to his view of the law in the case. The refusal of a judge to charge as requested, is the ground of an exception as well as any part of his charge to the jury.

Where a request to charge contains two propositions, one of which is right and the other wrong, it is not error in the court to refuse to charge as requested.2

It is no doubt the duty of the judge to charge the jury, and state to them the law of the case; but there may be good reasons for omitting to do so. Thus, where there was no dispute about the law, and the facts and intent were for the jury to decide, and the trial closed so late on Saturday night, that had the jury been charged, they must either have been dismissed or kept over Sunday, it was held that the judge had a right to exercise his discretion and submit the case without a charge.3

It is error for a judge to charge the jury that the evidence of the prisoner's good character is entitled to far inferior weight, when the question is one of great and atrocious criminality, than upon accusations of a lower grade. It is not improper for the judge to call the attention of the jury to the fact that witness' testimony differs from his statements to others as proven;5 and where the defence relied upon is an alibi, as to which there is conflicting testimony, it is not error for the judge to state that it is a defence not unfrequently sustained by perjury; nor is it erroneous to remind the jury of their obligations towards the public as well as the prisoner. Nor will a conviction be reversed on a writ of

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error, for a mere expression of the opinion of the presiding judge upon the weight of the evidence, where the question was left to the jury.1 A charge advising the jury that, as the prisoner gave no evidence that her character was good, that they were authorized to draw an inference that it was positively bad, is error.2 So, also, that the absence of evidence of good character might be taken into account in weighing the circumstances of the case.3 Where there was some proof that the prisoner was at the scene of the crime, it was held that a charge that, "if she might have been there, the onus was cast upon her to get rid of the suspicion thus attached to her, by showing where she was," was erroneous.* A verdict is not affected by an intimation given or opinion expressed by the judge as to the guilt or innocence of the prisoner. Sometimes it may be the duty of the judge to give an intimation; but if he leaves fully and fairly the whole question to the jury, it is not error. As to the proper terms of a charge to the jury in a case of homicide: Vide Peo. v. Walters, 32 New York, 147; S. C. 18, Abb., 147; and as to charges in cases of alleged poisoning: Vide Peo. v. Hartung, 4 Park., 256; Stevens v. Peo., Id., 396.

The earlier cases held that it was not improper to charge the jury that they were judges of both the law and the fact; and in the Supreme Court the opinions were conflicting;7 but the court of appeals have held that in criminal cases they are bound, by the instructions of the court as to the law, to the same extent as in civil cases.8

Lord HALE, in his history of the common law, in treating of the duties of judges and jurors, lays it down as a rule that the judge who presides shall always direct the jury in matters of law, before they retire or withdraw, and also assist them as to matters of fact.9

1 Peo. v. Rothbune, 21 Wend., 509; Peo. v. Quin, 1 Park., 340; 12 Wend., 78; 14 Id., 111.

Peo. v. Bodine, 1 Den., 281.

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Peo. v. Bodine, 1 Den., 281.

Done v. Peo., 5 Park., 364; Jefferds v. Peo., Id., 522; Id., 234.

Nook's Case, 3 City Hall Rec., 13-24.

' 1 Park., 147, 595-603, 474; 2 Barb., 566.

Duffy v. Peo., 26 N. Y., 538.

Hale's Hist. Com. Law., 256, 257.

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