effect of the facts proved, they may, except upon an indictment for libel, find a special verdict.

See § 10 of Penal Code. Under general verdict of guilty, sentence for the highest offense charged in indictment is proper. Hawker v. People, 75 N. Y. 487. See People v. Bork, 1 N. Y. Cr. 393. Special verdict. Miller v. People, 25 Hun, 473. People v. Rugg, 98 N. Y. 537, 551; 3 N. Y. Cr. 182; People v. Taylor, id. 302; People v. Bruno, 6 Park. 657; People v. McGeery, id. 653; Conkey v. People, 5 id. 31; 1 Abb. Dec. 418.

§ 437. General verdict. guilty is either guilty

66

A general verdict upon a plea of not 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."

People v. Rugg, 98 N. Y. 537, 551; 3 N. Y. Cr. 182; People v. Taylor, id. 302; People v. Burch, 5 id. 32; People v. Bork, 1 id. 393; People v. Livingston, 27 Hun, 105; 63 How. 242; Polinsky v. People, 11 Hun, 390; 73 N. Y. 65; Hawker v. People, 75 id. 487; People v. Trimble, 60 Hun, 365; aflirmed, 42 N. Y. St. Rep. 716, 718.

§ 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.

13 W. Dig. 260; Miller v. People, 25 Hun, 473; People v. Taylor, 3 N. Y. Cr. 302; People v. Hale, 1 id. 533; People v. Dowling, 84 N. Y. 478.

§ 439. Id.; 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.

People v. Taylor, 3 N. Y. Cr. 302.

§ 440. Id. The special verdict need not be in any particular form, but is sufficient, if it present intelligibly the facts found by the jury.

People v. Hale, 1 N. Y. Cr. 533.

§ 441. Id.; 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.

People v. Trimble, 42 N. Y. St. Rep. 716, 718; People v. Burch, 5 N.Y. Cr. 32,

§ 443. When special verdict defective, etc.-—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, etc.-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. Upon a trial for murder or manslaughter, if the act complained of is not proven to be the cause of death, the defendant may be convicted of assault in any degree constituted by said act, and warranted by the evidence. A conviction upon a charge of assault is not a bar to a subsequent prosecution for manslaughter or murder, if the person assaulted dies after the conviction, in case death results from the injury caused by the assault.

[AMD. BY CH. 625 OF 1900. In effect April 23, 1900.]

See § 390, ante; § 35 of Penal Code. Petit larceny on indictment for grand. People v. McTameny, 17 W. D. 492; 30 Hun, 505; 13 Abb. N. C. 55; 1 N. Y. Cr. 437; 66 How. 70; People v. Taylor, 3 N. Y. Cr. 302; People v. Palmer, 43 Hun, 404; 5 N. Y. Cr. 105; People v. Meegan, 104 N. Y. 531; People v. Sullivan, 4 N. Y. Cr. 193; People v. McDonald, 49 Hun, 68; People v. McDonnell, 92 N. Y. 657; 1 N. Y. Cr. 366; People v. Willson, 109 N. Y. 347; Abbott v People, 86 id. 460; People v. Downs, 56 Hun, 6; People v. McCallam, 3 N. Y. Cr. 199; People v. Thompson, 41 N. Y. 1; Ruloff v. People, 45 id. 213; People v. Lawton, 56 Barb. 126; People v. Snyder, 2 Park 23; People v. Jackson, 3 Hill, 92, Nevins v. People, 61 Barb. 307; People v. Didien, 17 How. 224. Where the act complained of is not proven to be the cause of death. People v. Wheeler, 79 App. Div. 396.

§ 445. In other cases, jury may convict, etc. — 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.

See People v. Jackson, 3 Hill, 92; People v. McTameney, 30 Hun, 505; 13 Abb. N. C. 55; 1 N. Y. Cr. 437; 66 How. 70; 17 W. D. 492; People v. Dowling, 1 N. Y. Cr. 531; People v. Palmer, 43 Hun, 406; People v. McDonald, 49 id 68; People v. Kennedy, 57 id. 535; People v. Meegan, 104 N. Y. 531.

§ 446. On indictment against several, etc.- On an indictment against one or more, if the jury can not agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly ; and the case, as to the rest, may be tried by another jury.

§ 447. In what cases court may direct a reconsideration of the verdict. When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict; and if, after the reconsideration, they return the same verdict, it must be entered. But when there is a verdict of acquittal, the court cannot require the jury to reconsider it. Root v. Sherwood, 6 John. 68; Blackley v. Sheldon, 7 id. 34; Hegeman v. Cantrell, 40 Sup. 385.

§ 448 Id. - If the jury render a verdict which is neither a general nor a special verdict, as defined in sections 437 and 438, the court may, with proper instructions as to the law, direct them to reconsider it; and it can not be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury, whether to render a general verdict, or to find the facts specially, and leave the judgment to the court.

§ 449. When judgment may be given upon an informal verdict. - If the jury persist in finding an informal verdict, from which, however, it can be clearly understood that their intention is to find in favor of the defendant, upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly find against the defendant, upon the issue, or judg-› ment be given against him on a special verdict.

People v. Burch, 5 N. Y. Cr. 32.

§ 450. Tolling the jury. - When a verdict is rendered, and before it is recorded, the jury may be polled, on the requirement of either party; in which case they must be severally asked whether it is their verdict; and if any one answer in the negative, the jury must be sent out for further deliberation.

People v. Burch, 5 N. Y. Cr. 32; Leighton v. People, 88 N. Y. 117; 10 Abb. N. C. 261.

§ 451. Recording the verdict.-When the verdict is given, and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement be expressed, the verdict is complete, and the jury must be discharged from the case.

§ 452. Defendant, when to be discharged or detained after acquittal. If judgment of acquittal be given on a general verdict,

and the defendant be not detained for any other legal cause, he must be discharged as soon as the judgment is given; except that when the acquittal is for a variance between the proof and the indictment, which may be obviated by a new indictment, the court may order his detention, to the end that a new indictment may be preferred, in the same manner and with the like effect as provided in sections 408 and 409.

People v. Cruger, 38 Hun, 500; People v. Fuller, 12 Abb. N. C. 196.

§ 453. Proceedings upon general verdict, etc. If a general verdict be rendered against the defendant, or a special verdict be given, he must be remanded, if in custody, or if on bail, he may be committed to the proper officer of the county, to await the judgment of the court upon the verdict. When committed, his bail is exonerated, or if money be deposited instead of bail, it must be refunded to the defendant.

People v. Trimble, 0 Hun, 365.

§ 454. When defendant acquitted on the ground of insanity, etc. -When the defense is insanity of the defendant the jury must be instructed, if they acquit him on that ground, to state the fact with their verdict. The court must, thereupon, if the defendant be in custody, and they deem his discharge dangerous to the public peace or safety, order him to be committed to the state lunatic asylum, until he becomes sane.

People ex rel. Mooney v. Walsh, 21 Abb. N. C. 300, n.

SEC. 455. In what cases.

456. By whom settled, and how filed.

457. To be settled at the trial, or the point noted in writing.

458, 459. When and how settled, after the trial.

460. Enlarging the time therefor.

461. Effect of not serving exceptions or amendments, within the time prescribed.

§ 455. In what cases. - On the trial of an indictment, exceptions may be taken by the defendant, to a decision of the court, upon a

matter of law, by which his substantial rights are prejudiced and not otherwise, in any of the following cases:

1. In disallowing a challenge to the panel of the jury;

2. In admitting or rejecting testimony on the trial of a challenge for actual bias to any juror who participated in the verdict, or in allowing or disallowing such challenge;

3. In admitting or rejecting witnesses or testimony, or in deciding any question of law, not a matter of discretion, or in charging or instructing the jury upon the law, on the trial of the issue.

People v. Willett, 36 Hun, 500; People v. Petmecky, 2 N. Y. Cr. 450; aff'd 99 N. Y. 415; People v. Guidici, 100 N. Y. 508; People v. McQuade, 110 N. Y. 284; 21 Abb. N C. 418, 439, 447; People v. Paliner, 109 N. Y. 419; 5 N. Y. Cr. 105; People v. Petrea, 1 id. 203; People v. Welch, id. 488; Walker v. People, id. 7; Berry . People, id. 43.

§ 456. Minutes of proceedings; how paid. Where the defendant is convicted of a crime punishable by death, the stenographer, within ten days after the judgment has been pronounced, shall furnish to the attorney for the defendant, at his request, a copy of the steno-· graphic minutes of the entire proceedings upon the trial. The expense of such copy shall be a county charge, payable to the stenographer out of the court fund upon the certificate of the judge presiding at the trial. [New.] [AM'D BY CHI. 427 OF 1897. In effect May 14, 1897.]

§ 457. To be settled, etc.-The bill of exceptions must be settled at the trial unless the court otherwise direct. If no such direction be given, the point of the exception must be particularly stated in writing, and delivered to the court, and must immediately be corrected or added to, until it is made conformable to the truth.

458. Case when necessary; how made and settled.- When a party intends to appeal from a judgment rendered after the trial of an issue of fact he must, except as otherwise prescribed by law, make a case and procure the same to be settled and signed, by the judge or jus tice, by or before whom the action was tried, as prescribed in the general rules of practice; or, in case of the death or disability of such judge or justice, in such manner as the appellate court directs. The case must contain so much of the evidence, and other proceedings upon the trial, as is material to the questions to be raised thereby, and als, the exceptions taken by the party making the case; and in a case where a special question is submitted to the jury, such exceptions taken by any party to the action as shall be necessary to de'ermine whether there should be a new trial, if the judgment be reversed. If it afterwards becomes necessary to separate the excptions, the separation may be made and the exceptions may be stated with so much of the evidence, and other proceedings, as is material to the questions raised by them, in a case prepared and settled as directed by the general rules of practice, or in the absence of directions therein, by the court, upon motion. [New.] AM'D BY CH. 427 OF 1897. In effect May 14, 1897.]

$459. Id. At the time appointed, the judge must settle and sign the bill of exceptions.

People v. Bradner, 44 Iun, 235; 107 N. Y. 1. § 460. Enlarging the time therefor.—The time for preparing the case, or the amendments thereto, or for settling the same, may be enlarged by consent of the parties, or by the presiding judge or by a justice of the supreme court, but no other officer. Only one order extending the time shall be granted, except upon notice of at least two days to the adverse party. [New.] [AM'D BY CH. 427 OF 1897. In effect May 14, 1897.]