(c) Incom-lete verdict. Where a special verdict is taken which does not dispose of all the material issues, subject to the opinion of the coart at general term, a new trial must be awarded. (Eisman v. Swan, 6 Bos., 668.)

§ 444. Upon indictment for offense consisting of different degrees, jury may convict of any degree, or of any attempt to commit the offense. 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.

3 RS, 995; § 48; see Penal Code, § 35; 2 R. S. (Edm.), 725, § 27.

(a) Burglary, or an attempt at burglary. A prisoner indicted for burglary may be convicted for an attempt to commit the crime. (People v. Lawton, 56 Barb., 126; People v. Jackson, 3 Hill, 92; Dedien v. People, 22 N. Y., 178; distinguished in 80 N. Y., 333.)

(b) Similarity of offense. - A conviction for a lesser degree of crime than that charged in the indictment is good, where the act proved is similar to that charged. (Keefe v. People, 40 N. Y., 348; Dedien v. People, 22 N. Y., 178; see, also, People v. Saunders, 4 Park., 196.)

(c) When conviction sufficient. A conviction will be sustained if otherwise valid, notwithstanding there is an allegation in the indictment of facts characterizing a higher crime. (People v. Lohman, 2 Barb, 216.)

(d) Doubt as to degree. Where there is reasonable doubt as to the degree, the jury should convict of the lesser. (People v. Lamb, 2 Keyes, 360; 2 Abb., 148; 54 Barb., 342; McKenna v. People, 10 N. Y. W. Dig., 342.)

§ 445. In other cases, jury may convict of any offense necessarily included in that charge. 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.

New.

(a) Burglary or larceny. - Under an indictment for burglary the prisoner may be convicted of a simple larceny. (People v. Snyder, 2 Park, 23.)

(b) Felony or misdemeanor. - Under an indictment for a felony the prisoner may be convicted of a crime of the same class of an inferior grade though only a misdemeanor. (People v. Jackson, 3 Hill, 92; Palmer v. People, 5 id., 427; see, also, cases cited under § 445, ante.)

§ 446. On indictment against several, jury may render a verdict as to some, and the cause be again tried as to the others. On an indictment against one or more, if the jury cannot 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 judg

ment must be entered accordingly; and the case, as to the rest, may be tried by another jury.

New. (See § 292, ante.)

Where in an indictment against three the trial evidence discloses that one party is innocent he may be discharged. (People v. Costello, 1 Den., 83)

If the acts of several persons committing the offense are a part of one and the same transaction, and the offense in law admits of different degrees, they may be convicted of different degrees. (Klein v. People, 31 N. Y., 229.)

§ 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.

New. (See Hegeman v. Cantrell, 8 J. & Sp., 381.)

§ 448. In what cases court may direct a reconsideration of the verdict. If the jury render a verdict which is neither a general nor a special verdict, as defined in sections four hundred and thirty-seven and four hundred and thirty-eight, the court may, with proper instructions as to the law, direct them to reconsider it; and it cannot 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.

New.

§ 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 judgment be given against him on a special verdict.

New.

$450. Polling 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.

New.

(a) When juror may dissent. - Until a verdict is openly delivered and recorded any of the jurors may dissent from it on being polled. (Root 7. Sherwood, 6 Johns., 68.)

(b) Must be polled before verdict is recorded. The jury may be polled at any time before the verdict is recorded. (Fox v. Smith, 3 Cow., 23; Labar v. Koplin, 4 N. Y. 547.)

(c) May be polled where sealed verdict is given. — A party is entitled to poll the jury when a sealed verdict is brought in. (Fink v. Hawkes, 2 Wend., 619.)

(d) Form of polling. — In polling a jury the only inquiry is, “Is this your verdict ?" (Labar v. Koplin, 4 N. Y., 547.)

(e) Objections to form. - Any objection to the form of polling the jury, not taken at the time, is waived. (Green v. Bliss, 12 How., 428.)

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.

New.

Until a verdict is openly delivered and recorded any of the jurors may dis sent. (Root v. Sherwood, 6 Johns., 68.)

At any time before the verdict is recorded the jury may be polled. (Fox v. Smith, 3 Cow., 23; Labar v. Koplin, 4 N. Y., 547.)

-

(a) Cannot amend verdict after recording. If the verdict be defective in substance the court has no power to amend it after being received and recorded. (Herlsberg v. Murray, 8 J. & Sp., 271.)

§ 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 four hundred and eight and four hundred and nine.

New.

Questions of variance between the proof given at the trial and the indictment cannot be raised on a motion in arrest of judgment. (Case v. People, 6 Abb. N. C., 151.)

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

New.

§ 454. When defendant acquitted on the ground of insanity, the fact to be stated with the verdict; commitment of defendant to state lunatic asylum. 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.

New.

TITLE VIII.

OF THE PROCEEDINGS AFTER TRIAL AND BEFORE JUDGMENT.

CHAPTER I. Bill of exceptions.

II. New trials.

III. Arrest of judgment.

CHAPTER I.

BILL OF EXCEPTIONS.

SECTION 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.

3 R. S., 1003, § 26.

(a) All proceedings should be embraced.

-The decision of the court

in a criminal case upon a material legal question, fundamental in its character, excepted to before impanneling the jury, should be deemed incorporated into the proceedings on the trial. (Starin v. People, 45 N. Y., 333.)

(6) May review decision of challenge. If the court overrule a chal lenge to favor, when properly made, it may be reviewed on exception; and also when the court refuses to allow competent evidence to be given in determining the challenge. (People v. Bodine, 1 Den., 281; People v. Honeyman, 3 id., 121; People v. Knickerbocker, 1 Park., 302; People v. Rathbun, 21 Wend., 509; Stout v. People, 4 Park., 132.)

(c) Wholly irrelevant evidence not ground. The rejection of evi dence which is wholly irrelevant to the issues is not a ground of exception. (Purchase v. Matteson, 6 Duer, 587.)