SECTION VIII. THE TRIAL. § 927. Separate Trial. 928. Public Trial. 929. Provisions of the Statute as to the Mode of Procedure on the Trial. 930. Separation of Witnesses. 931. The Openings of the Respective Counsel. 932. Presence of the Prisoner, when Necessary.. 933. Presence of the Defendant at the Making and Hearing Motions. 934. Order of Giving the Evidence. 935. Objections to Evidence. 936. Objections which can be Obviated. 937. Evidence-Time-Place. 938. Confessions. 939. Confessions Inadmissible. 940. Admissions. 941. As to the whole of the Confession, etc. 942. Effect to be given to admissions. 943. Acts and Declarations of Persons Jointly Guilty. 944. Accomplice-Definition of-Conviction on the Testimony of. 945. Interpreter. 946. Closing Arguments. 947. Improper Conduct of the State's Attorney in Addressing the jury— Medical Books-Testimony in Another Case. 948. Instructions to be Brief-Right to Limit 949. Instructions, when to be Given. 950. Instructions to be in Writing. 951. Oral Remarks of the Judge. 952. Requisites of an Instruction. 953. Instructions to be Given Hypothetically- Omissions in, how Obviated. ⚫954. Instructions need not Embody all the Law Governing the Case. 955. Inaccuracies in Instructions. 956. Effect of naming a Witness in an Instruction. 957. Instruction as to the Application of Evidence. 958. Evidence, how Weighed. 959. It is not for the Court to Draw Inferences. 960. Absence of Witness Creates no Presumption. 961. Instruction as in a Case of Nonsuit-Variance-Excluding Evl dence. § 962. Sufficiency of Indictment-Sufficiency of Evidence-Crime or Not. 963. Further Instructions-Judge not to Communicate with the Jury except in Open Court. 964. Reasonable Doubt. 965. Forms of Instructions. 966. Marking Instructions. 967. Exceptions. 968. Instructions Taken by the Jury. 969. Papers, etc., may be Taken by the Jury. 973. Jury, Judges of the Law and Fact. 974. Sealing Verdict and Separation of the Jury. 975. Penalties Determined by the Jury-Penitentiary. 976. Fines Fixed by the Jury. 977. Penalties to be Fixed by the Court. 978. Conviction of Lesser Offense. 979. Verdict where Some of the Counts are Faulty. 980. Verdict, when Sufficient. 981. Verdict in a Case of Larceny must Find the Value of the Property Stolen. 982. Verdict in a Case of Murder, how Affected by the Intoxication of the Accused. 983. When Verdict may be Received. 984. Reception of the Verdict. 985. Polling the Jury. 986. Amendment of Verdict, when Permitted. 987. Motion for a New Trial. 988. Motion in Arrest of Judgment, when a Waiver of a Motion for a New Trial. 989. Grounds of Motion for a New Trial-Admitting Improper Evidence. 990. Improperly Rejecting Evidence. 991. Giving Improper or Refusing to Give Proper Instructions 992. Verdict against Law and Evidence. 993. Newly Discovered Evidence. 994. Affidavit on Motion for New Trial. 995. Cases where New Trial has been Granted. 996. Cases where a New Trial has been Refused. 997. Motion in Arrest of Judgment, when Made. 998. Motion to be in Writing and Specify the Cause of the Arrest. 999. Causes for the Arrest of Judgment. 1000. What not a Sufficient Cause for the Arrest of Judgment. 1001. After Arrest of Judgment the Defendant may be Re-tried. 1002. Motion for a New Trial and in Arrest of Judgment Disposed of by Rendering Final Judgment. 1. MISCELLANEOUS MATTERS INCIDENT TO THE TRIAL. § 927. Separate Trial. Where several persons are jointly indicted they cannot, as a matter of right, have separate trials. This allowance is in the discretion of the court and cannot be assigned for error.1 $928. Public Trial.-By the constitution persons accused of crime are entitled to a public as well as an impartial trial; but to prevent noise and disturbance, the court may order the doors of the court-room closed where ingress or egress are not prevented. This does not render the trial private.3 929. Provisions of the Statute as to the Mode of Procedure on the Trial. "All trials for criminal offenses shall be conducted according to the course of the common law, except when this act points out a different mode, and the rules of evidence of the common law shall also be binding upon all courts and juries in criminal cases except as otherwise provided by law.” § 930. Separation of Witnesses.The court may on motion of either party exclude from the room where the court is held all the witnesses except the one under examination. This separation of the witnesses is not a thing of absolute right to be demanded by the prisoner, for the court may refuse to grant the motion for the separation, though it is pretty much a matter of course to grant it. If the witness fails to obey the order of exclusion, it is within the discretion of the court Maton v. People, 15 Ills., 537; Johnson v. People, 22 Ills., 315; U. S. v. Merchant, 12 Wheat., 480; State v. Nash, 7 Iowa, 348; State v. Marvin, 12 Iowa, 499; State v. Gigher, 23 Iowa, 318; State v. Hunter, 33 Iowa, 361; Com. v. Thompson, 108 Mass., 461; Com. v. Jones, 99 Mass., 438; ante § 79. 2 R. S., 60, Const., Art. II., § 9. 1 Bish. Cr. P.. § 957-959; Cooley Con. Lim., 312; Stone v. People, 2 Scam., 326. R. S., 410, § 428. People v. Green, 1 Park., 11; Johnson's Case, Foster, 46; State v. Zellers, 2 Halst., 220; People v. Duffy, 1 Wheel. C. C., 123. Errissman v. Errissman, 25 Ills., 136; Vaughan's Case, Holt, 689; State v. Fitzsimmons, 30 Mo., 236; Thomas v. State, 27 Ga., 287; People v. Garnett, 29 Cal., 622; Nelson v. State, 2 Swan, 237. 7 Reg. v. Murphy, 8 Car. & P., 297; Johnson v. State, 14 Ga., 55. to admit the testimony of such witness or to exclude it.1 An order may forbid the witnesses who have been examined from holding conversation with the other witnesses previous to the examination of the latter.2 2. OPENINGS OF COUNSEL. 4 931. The Openings of the Respective Counsel.-When the jury are impaneled and have taken their seats, the counsel for the prosecution opens the case to the jury unless the defendant has the affirmative of the issue, in which case the defendant or his counsel has the right to make the first statement of the case to the jury. The counsel for the prosecution in opening the case usually states the outline of the indictment and the pleadings thereon, giving the jury fully and clearly to understand the question in issue which they are to determine, and then states the facts which he expects to prove with all of the circumstances of the case as they will probably appear from the evidence to be adduced and its application to the points in issue and the principles of law governing the same. He may, if he deems it advisable, state what the defendant will probably prove and what evidence he will give in reply to the evidence of the defendant, with such comments as he thinks proper to make, so that the jury may at the commencement of the trial have a full and complete understanding of the case and be better prepared to understand the evidence in all of its bearings. In opening the case the counsel has no right to state facts which he knows are immaterial or inadmissible in evidence and cannot be proved, and the court should not allow or 'Sartorus v. State, 24 Missis., 602; State v. Sparrow, 2 Murphy, 487; Parker v. McWilliams, 6 Bing., 683; Com. v. Hersey, 2 Allen, 173, 176; Rex v. Colley, Moody & M., 329; Rex v. Brown, 4 Car. & P., 588; Laughlin v. State, 18 Ohio, 99; Montgomery v. State, 40 Ala., 684; Jackson v. State, 14 Ind., 327. * Pleasant v. State, 15 Ark., 624. 3 Harveye. Ellethorpe, 26 Ills., 418; Marshall v. American Express Co., 7 Wis., 1; Huddle v. Martin, 54 Ills., 258; Kells v. Davis, 57 Ills., 261. 1 Chitty Cr. L., 554. * Putb. Pr., 463; U. S. v. Mingo, 2 Curtis C. C., 1. 1 permit him to do so. The counsel for the defendant then usually opens the case for his client, although he may waive the statement of his defense until the opposite party has rested his case.2 Where the counsel for several persons cannot agree as to the order in which they are to address the jury, the court will call upon them, not in the order of their seniority, but in the order in which the names of the defendants stand in the indictment. But where the counsel for one prisoner has witnesses to certain facts to examine, the counsel for another cannot be allowed to postpone his address to the jury until after those witnesses have been examined. The order of opening the case to the jury is a matter of practice within the control of the judge, and the appellate court will not interfere unless there is a clear abuse of discretion to the injury of the party complaining.1 3. PRESENCE OF PRISONER. 8932. When Necessary. In a case of treason, felony or misdemeanor punishable by imprisonment, or by corporal 1 Rcg. v. Beard, 8 Car. & P., 142; Reg. v. Butcher, 2 Moody & Ry., 228; Rex v. Orvell, 1 Moody & Ry., 467; Rex v. Davis, 7 Car. & P., 785; Rex v. Hartell, 7 Car. & P., 773; Rex v. Swatkins, 4 Car. & P., 548; People v. White, 14 Wen., 111, 114, 115. 2 Putb. Pr., 464; 1 Chitty Cr. L., 623. Roscoe Cr. Ev., 235; Reg. v. Barber, 1 Car. & K., 434. Marshall . American Express Co., 7 Wis., 1; Central Bank v. St. John, 17 Wis., 163; Savings Bank v. Shakman, 30 Wis., 333; Huddle v. Martin, 54 Ills., 258; Kells v. Davis, 57 Ills., 261. 1 Chitty Cr. L., 411; Holliday v. People, 4 Gilm., 111; Prine v. Com., 6 Harris Pa., 103, 104; Clark v. State, 4 Humph., 254; People v. Perkins, 1 Wen., 91; State v. Hughes, 2 Ala., 102; State v. Buckner, 25 Mo., 167; Andrews v. State, 2 Sneed, 550; Stance v. France, 1 Tenn., 434; Cole v. State, 5 Engl., 318; Sneed v. State, 5 Pike, 431; State v. Cross, 27 Mo., 332; Safford v. People, 1 Park. Cr. P., 477, Anon., 31 Me., 592. People v. Winchell, 7 Cowen, 525; State v. Hurlbut, 1 Root, 90; Price v. State, 36 Missis., 531; Hamilton v. Com., 4 Harris Pa., 129; Gibson v. State, 39 Ala., 693; Graham v. State, 4 Ala., 659; Safford v. People, 1 Park., 477; Rex v. Harwood, 2 Stra., 1088; contra, Hughes v. State, 4 Iowa, 555; Holliday v. People, 4 Gilm., 114. |