TITLE VII.

Proceedings After the Commencement of the Trial and Before Judgment.

Chapter I. Challenging the Jury. §§ 1055–1089.

III. Conduct of the Jury After the Cause is Submitted to
Them. §§ 1135-1143.

IV. The Verdict. §§ 1147-1167.

V. Bills of Exception. §§ 1170-1177.

VI.

New Trials. §§ 1179-1182.

VII. Arrest of Judgment. §§ 1185-1188.

§ 1061.

$ 1062.

§ 1063.

§ 1064.

§ 1065.

§ 1066.

Upon what founded.

When and how taken.

If sufficiency of the challenge be denied, adverse party may
except. Exception, how taken and tried.

If exception overruled, court may allow denial, etc.
Denial of challenge, how made, and trial thereof. Who may
be examined on trial of challenge.

Challenge when jury is summoned but not drawn, for bias in
summoning officer.

If challenge allowed, jury to be discharged; if disallowed, to be impaneled.

Defendant to be informed of his right to challenge individual jurors.

[Repealed.]

Triers, how appointed. Majority may decide. [Repealed.]
Oath of triers.

§ 1081.

§ 1082.

Juror challenged may be examined as a witness.
Rules of evidence on trial of challenge.

§ 1083.

§ 1084.

Decision.

Instructions to triers on trial of challenge for actual bias.

[Repealed.]

§ 1085.

Verdict of triers, and its effect.

[Repealed.]

§ 1086. § 1087. § 1088.

Challenges, first by the defendant and then by the people.
Order of challenges.

Peremptory challenges may be taken after challenges for
cause on both sides are exhausted.

§ 1089. Alternate jurors, how chosen. Rights and duties of alternate

jurors.

§ 1055. Definition and division of challenges. A challenge is an objection made to the trial jurors, and is of two kinds :

1. To the panel;

2. To an individual juror.

Challenge, defined: See ante, § 1055; post, § 1071.
Challenges, kinds of: See post, §§ 1067, 1071.

Challenge for cause, definition of: See post, § 1071.
Challenge to panel, definition of: See post, § 1058.

Legislation § 1055. Enacted February 14, 1872 (N. Y. Code Crim. Proc., $359); in exact language of Crim. Prac. Act, Stats. 1851, p. 247, § 326.

§ 1056. Defendants cannot sever in challenges. When several defendants are tried together they cannot sever their challenges, but must join therein.

Legislation § 1056. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 360); in substance the same as Crim. Prac. Act, Stats. 1851, p. 247, § 327.

§ 1057. Panel defined. The panel is a list of jurors returned by a sheriff, to serve at a particular court or for the trial of a particular action.

Selecting and returning jurors: Code Civ. Proc., §§ 204-211.
Drawing jurors: Code Civ. Proc., §§ 214-220.

Summoning jurors: Code Civ. Proc., §§ 225-228.

Legislation § 1057. Enacted February 14, 1872; in substance the same as Crim. Prac. Act, Stats. 1851, p. 247, § 328.

§ 1058. Challenge to the jury defined. A challenge to the panel is an objection made to all the jurors returned, and may be taken by either party.

Legislation § 1058. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 361); in exact language of Crim. Prac. Act, Stats. 1851, p. 247, § 329.

§ 1059. Upon what founded. A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury in civil actions, or on the intentional omission of the sheriff to summon one or more of the jurors drawn.

Legislation § 1059. Enacted February 14, 1872 (N. Y. Code Crim. Proc.. § 362); in substance the same as Crim. Prac. Act, Stats. 1851, p. 247, § 330.

1060. When and how taken. A challenge to the panel must be taken before a juror is sworn, and must be in writing or be noted by the phonographic reporter, and must plainly and distinctly state the facts constituting the ground of challenge.

Challenge to panel: See post, § 1087.

Legislation § 1060. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 363); based on Crim. Prac. Act, Stats. 1851, p. 247, § 331, which read: "§ 331. A challenge to a panel must be taken before a juror is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the grounds of challenge."

§ 1061. If sufficiency of the challenge be denied, adverse party may except. Exception, how taken and tried. If the sufficiency of the facts alleged as ground of the challenge is denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered on the minutes of the court, or of the phonographic reporter, and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true. Exception to challenge and proceedings on: See post, §§ 1062, 1077, 1078.

Exception to ruling: Post, § 1170.

Trial of challenge: See post, §§ 1077, 1078, 1081.

Legislation § 1061. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 364); based on Crim. Prac. Act, Stats. 1851, p. 248, §§ 332, 333, which read: "§ 332. If the sufficiency of the facts alleged as a ground of challenge be determined, the adverse party may except to the challenge. The exception need not be in writing, but shall be entered on the minutes of the court. § 333. Upon the exception the court shall proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true."

§ 1062. If exception overruled, court may allow denial, etc. If, on the exception, the court finds the challenge sufficient, it may, if justice requires it, permit the party excepting to withdraw his exception, and to deny the facts alleged in the challenge. If the exception is allowed, the court may, in like manner, permit an amendment of the challenge.

Exception to challenge and proceedings on: See ante, § 1061; post, 88 1077, 1078.

Legislation § 1062. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 365); in substance the same as Crim. Prac. Act, Stats. 1851, p. 248, § 334.

$1063. Denial of challenge, how made, and trial thereof. Who may be examined on trial of challenge. If the challenge is denied, the denial may be oral, and must be entered on the minutes of the court, or of the phonographic reporter, and the court must proceed to try the question of fact; and

upon such trial, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge.

Legislation § 1063. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 366, 367); based on Crim. Prac. Act, Stats. 1851, p. 248, §§ 335, 336, which read: "§ 335. If the challenge be denied, the denial may in like manner be oral, and shall be entered on the minutes of the court, and the court shall proceed to try the question of fact. § 336. Upon such trial, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the grounds of challenge."

§ 1064. Challenge when jury is summoned but not drawn, for bias in summoning officer. When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner, as if made to a juror.

Legislation § 1064.

Enacted February 14, 1872; based on Crim. Prac. Act, Stats. 1851, p. 248, § 337, which read: "§ 337. When the panel is formed from persons whose names are not drawn from the grand-jury box, a challenge may be made to the panel on account of any bias of the officer who summoned the jury, which would be good ground of challenge to a juror. Such objection shall be made in the same form, and determined in the same manner as when made to a juror."

§ 1065. If challenge allowed jury to be discharged; if disallowed, to be impaneled. If, either upon an exception to the challenge or a denial of the facts, the challenge is allowed, the court must discharge the jury so far as the trial in question is concerned. If it is disallowed, the court must direct the jury to be impaneled. [Amendment approved 1880; Code Amdts. 1880, p. 20.]

Legislation § 1065. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 368); in substance the same as Crim. Prac. Act, Stats. 1851, p. 248, § 338.

2. Amended by Code Amdts. 1880, p. 20, changing "trial of the indictment in question" to "trial in question."

§ 1066. Defendant to be informed of his right to challenge individual jurors. Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intends to challenge an individual juror he must do so when the juror appears, and before he is sworn.

Legislation § 1066. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 369); in substance the same as Crim. Prac. Act, Stats. 1851, p. 248, § 339.

Pen. Code-33

§ 1067. Kinds of challenges to individual juror. A challenge to an individual juror is either:

1. Peremptory; or,

2. For cause.

Challenges, kinds of: See ante, § 1055; post, § 1071.

Legislation § 1067. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 370); in exact language of Crim. Prac. Act, Stats. 1851, p. 248, § 340.

§ 1068. Challenge, when taken. It must be taken when the juror appears, and before he is sworn to try the cause; but the court may for cause permit it to be taken after the juror is sworn, and before the jury is completed.

Legislation § 1068. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 371); based on Crim. Prac. Act, Stats. 1851, p. 248, § 341, which read: "§ 341. It must be taken when the juror appears, and before he is sworn, but the court may for good cause permit it to be taken after the juror is sworn, and before the jury is completed." § 1069. Peremptory challenge, what, and how taken. A peremptory challenge can be taken by either party, and may be oral. It is an objection to a juror for which no reason need be given, but upon which the court must exclude him.

Legislation § 1069. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 372); in substance the same as Crim. Prac. Act, Stats. 1851, p. 248, § 342.

§ 1070. Number of peremptory challenges. If the offense charged be punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to twenty and the state to ten peremptory challenges. On a trial for any other offense, the defendant is entitled to ten and the state to five peremptory challenges. [Amendment approved 1874; Code Amdts. 1873-74, p. 441.]

Number of peremptory challenges: See post, § 1089.

Legislation § 1070. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 373); in substance the same as Crim. Prac. Act, § 343, as amended by Stats. 1863-64, p. 394, § 1. When enacted in 1872, § 1070 read: "1070. If the offense charged is punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to ten and the state to five peremptory challenges. On a trial for any other offense, the defendant is entitled to five and the state to three peremptory challenges."

2. Amended by Code Amdts. 1873-74, p. 441.

§ 1071. Definition and kinds of challenge, for cause. A challenge for cause may be taken by either party. It is an objection to a particular juror, and is either:

1. General-that the juror is disqualified from serving in

any case; or,