§ 1129. When defendant on bail appears for trial he may be committed. When a defendant who has given bail appears for trial, the court may, in its discretion, at any time after his appearance for trial, order him to be committed to the custody of the proper officer of the county, to abide the judgment or further order of the court, and he must be committed and held in custody accordingly.

Legislation § 1129. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 422); in substance the same as Crim. Prae. Act, Stats. 1851, p. 256, § 403.

§ 1130. If district attorney fails to attend, court may appoint. If the district attorney fails to attend at the trial, the court must appoint some attorney at law to perform the duties of the district attorney on such trial.

District attorney, duties of: Pol. Code, §§ 4153-4156a.
Argument: Ante, § 1093, subd. 5.

Number of counsel: Ante, § 1095.

Order of argument: Ante, § 1093, subd. 5.

Legislation § 1130. Enacted February 14, 1872; based on “An Act concerning District Attorneys," Stats. 1851, p. 188, § 5, which read: "§ 5. If he [the district attorney] fails to attend any term of those courts, [the district courts,] the. court shall designate some other person to perform the duties of district attorney during his absence from the court, who shall receive a reasonable compensation, to be certified by the court, and paid from the county treasury."

§ 1131. When allegations of embezzlement sustained. Upon a trial for larceny or embezzlement of money, bank notes, certificates of stock, or valuable securities, the allegation of the indictment or information, so far as regards the description of the property, is sustained, if the offender be proved to have embezzled or stolen any money, bank notes, certificates of stock, or valuable security, although the particular species of coin or other money, or the number, denomination, or kind of bank notes, certificates of stock, or valuable security, be not proved; and upon a trial for embezzlement, if the offender be proved to have embezzlęd any piece of coin or other money, any bank note, certificate of stock, or valuable security, although such piece of coin or other money, or such bank note, certificate of stock, or valuable security, may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, and such part shall have been returned accordingly. [Amendment approved 1880; Code Amdts. 1880, p. 24.]

Legislation § 1131. 1. Added by Code Amdts. 1873-74, p. 445.

2. Amended by Code Amdts. 1880, p. 24, inserting "or informa tion" after "indictment."

CHAPTER III.*

Conduct of the Jury After the Cause is Submitted to Them.

§ 1135. Room and accommodations for the jury after retirement, how

§ 1136.

§ 1137. § 1138.

§ 1139.

§ 1140.

§ 1141.

§ 1142.

provided.

Juries to be supplied with food and lodging.
What papers the jury may take with them.
Return of jury for information.

If juror after retirement becomes sick, etc., jury to be dis
charged.

Not to be discharged for any other cause, unless there is no reasonable probability that they can agree.

When jury discharged or prevented from giving a verdict, cause to be again tried.

Court may adjourn during absence of jury, but deemed open for all purposes connected with cause. § 1143. Jurors' fees. Payment of same.

§ 1135. Room and accommodations for the jury after retirement, how provided. A room must be provided by the supervisors of each county for the use of the jury, upon their retirement for deliberation, with suitable furniture, fuel, lights, and stationery. If the supervisors neglect, the court may order the sheriff to do so, and the expenses incurred by him in carrying the order into effect, when certified by the court, are a county charge.

Jury expenses: See Pol. Code, § 4344, subd. 2.

Legislation § 1135. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 423); in substance the same as Crim. Prac. Act, § 404, as amended by Stats. 1863, p. 160, § 16.

§ 1136. Juries to be supplied with food and lodging. While the jury are kept together, either during the progress of the trial or after their retirement for deliberation, the court must direct the sheriff to provide the jury with suitable and sufficient food and lodging, or other reasonable necessities. And the auditor, upon the order of the court, shall draw his warrant for the expenses so incurred, and the same shall be paid by the treasurer of the county, or city and county, out of the general fund. [Amendment approved 1901; Stats. 1901, p. 654.]

Legislation § 1136. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 424); in substance the same as Crim. Prae. Act, Stats. 1851, p. 256, § 405. When enacted in 1872, § 1136 read: "1136. While the jury are kept together, either during the progress of the trial or after their retirement for deliberation, they must be provided by the sheriff, at the expense of the county, with suitable and sufficient food and lodging."

2. Amended by Stats. 1901, p. 654.

§ 1137. What papers the jury may take with them. Upon retiring for deliberation, the jury may take with them

all papers (except depositions) which have been received as evidence in the cause, or copies of such public records or private documents given in evidence as ought not, in the opinion of the court, to be taken from the person having them in possession. They may also take with them the written instructions given, and notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person.

Legislation § 1137. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 425, 426); based on Crim. Prac. Act, Stats. 1851, p. 256, §§ 406, 407, which read: "§ 406. Upon retiring for deliberation, the jury may take with them all papers (except depositions) which have been received as evidence in the case, or copies of such parts of public records or private documents given in evidence as ought not in the opinion of the court to be taken from the person having them in possession. § 407. The jury may also take with them notes of the testimony or other proceedings on the trial taken by themselves, or any of them, but none taken by any other person." The code commissioners say: "It heretofore rested in the discretion of the court to permit the jury to take the instructions with them to the jury-room. It was frequently cause for their return to inquire in regard to the instructions; hence the necessity and propriety of the change."

§ 1138. Return of jury for information. After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the district attorney, and the defendant or his counsel, or after they have been called. [Amendment approved 1874; Code Amdts. 1873-74, p. 445.]

Legislation § 1138. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 427); in substance the same as Crim. Prac. Act, Stats. 1851, p. 256, § 408.

2. Amended by Code Amdts. 1873-74, p. 445, (1) in first sentence, changing "if there is" to "if there be,” and (2) adding "or after they have been called" at end of section.

§ 1139. If juror after retirement becomes sick, etc., jury to be discharged. If, after the retirement of the jury, one of them be taken so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept for deliberation, the jury may be discharged.

Proceedings where juror becomes sick: See ante, §§ 1089, 1123.
Alternate jurors, provision for: See ante, § 1089.

Legislation § 1139. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 428); in exact language of Crim. Prac. Act, Stats. 1851, p. 256, § 409.

§ 1140. Not to be discharged for any other cause, unless there is no reasonable probability that they can agree. Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.

Legislation § 1140. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 428); in substance the same as Crim. Prac. Act, Stats. 1851, p. 256, § 410.

§ 1141. When jury discharged or prevented from giving a verdict, cause to be again tried. In all cases where a jury is discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged during the progress of the trial, or after the cause is submitted to them, the cause may be again tried. [Amendment approved 1880; Code Amdts. 1880, p. 24.]

New trial: See post, § 1181.

Jeopardy: See ante, § 687.

Discharge without verdict, retrial of cause: See post, § 1147.

Legislation § 1141. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 430); in substance the same as Crim. Prac. Act, Stats. 1851, p. 256, § 411. When enacted in 1872, § 1141 read: "1141. In all cases where a jury are discharged or prevented from giving a verdiet by reason of an accident or other cause, except where the defendant is discharged from the indictment during the progress of the trial or after the cause is submitted to them, the cause may be again tried at the same or another term."

2. Amended by Code Amdts. 1880, p. 24.

§ 1142. Court may adjourn during absence of jury, but deemed open for all purposes connected with cause. While the jury are absent the court may adjourn from time to time, as to other business, but it must nevertheless be open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged.

Legislation § 1142. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 431); in substance the same as Crim. Prac. Act, Stats. 1851, p. 257, § 412.

§ 1143. Jurors' fees. Payment of same. The fees of jurors in the superior courts of the state, in criminal cases, shall be two dollars, in lawful money of the United States, for each day's attendance, and mileage, to be computed at the rate of fifteen cents per mile for each mile necessarily traveled in attending court, in going only. Such fees and mileage shall be paid by the treasurer of the county, or city

and county, in which the juror's services were rendered, out of the general fund of said county, or city and county, upon warrants drawn by the county auditor upon the written order of the judge of the court in which said juror was in attendance, and the treasurer of said county, or city and county, shall pay said warrants. The board of supervisors of each county, or city and county, is hereby directed to make suitable appropriation for the payment of the fees herein provided for.

Legislation § 1143. Added by Stats. 1901, p. 290. The original code § 1143 read, "A final adjournment of the court discharges the jury," and was repealed by Code Amdts. 1880, p. 6.

$1156.

§ 1157.

When special verdict defective, new trial to be ordered.
Jury to find degree of crime.

§ 1165.

Jury may find upon charge of previous conviction.
Jury may convict of a lesser offense or of an attempt.
Verdict as to some defendants and another trial as to others.
In what cases court may direct a reconsideration of the ver-
dict.

When judgment may be given on informal verdict.
Polling the jury.

Recording the verdict.

Defendant, when to be discharged or detained after acquittal.

§ 1166. Proceedings upon general verdict of conviction or a special

verdict.

§ 1167. Proceedings on acquittal on ground of insanity.

§ 1147. Return of jury. When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do. not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried. [Amendment approved 1905; Stats. 1905, p. 697.]

Discharge without verdict, retrial of cause: See ante, § 1141.
Proceedings when verdict reached: See post, § 1164.

Legislation § 1147. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 433); in substance the same as Crim. Prac. Act, Stats. 1851, p. 257, § 414.