jury comes next in order. Most of the states have special statutes directing how jurors are to be selected, and how and for what causes they may be challenged. There are three kinds of challenges, namely: challenge to the array, which is an objection to the whole body of jurors returned by the sheriff for some irregularity or misconduct on the part of the sheriff; the peremptory challenge, which is an objection to an individual juror without stating any reason, the number of such challenges being limited by law; the challenge for cause, which is an objection to an individual juror on account of bias, partiality or the existence in his mind of a prejudice against the defendant, or of a preconceived opinion of his guilt, there being no limit to the number of challenges of this kind. The jury is not complete until twelve men are selected. When all challenges are exhausted or waived and the panel is full, the jurors are sworn in open court to try the case.

§ 709. Opening statements of counsel.-When the jury are impaneled and sworn, the prosecuting attorney opens the case by stating the substance of the evidence he proposes to submit to the jury. This statement should be full and candid, so as to notify counsel for defense of the case they are expected to meet. Then follows the statement for the defense, or, if counsel prefer, the statement for the defense is postponed until the evidence for the prosecution has been put in. The order of these opening addresses is a matter within the discretion of the court, except in those states where the statutes prescribe it.

§ 710. Examination of witnesses.-The witnesses for the prosecution are then called and examined. It is usual for one counsel only to conduct the direct examination, and one to conduct the cross-examination of each

witness. This is a matter of usage, however, regulated by the practice of each court. Upon request the presiding judge may allow other counsel in the case to interrogate the witness. Arbitrary rules are not enforced, the object being to get all the material facts before the jury, and the judge is allowed a large discretion in determining the order in which the evidence is to be introduced. It sometimes happens that important facts are within the knowledge of a witness who has been examined and discharged, and which was not elicited upon his examination. Where this appears to be the case the court may allow such witness to be recalled by the prosecution or defense, even after it has been announced that the evidence is all in.

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§ 711. Rules of evidence. The general rules of evidence as to its competency and relevancy are the same in criminal as in civil cases; as to the weight and effect of the evidence the rules are different. A bare preponderance of evidence is enough to establish the plaintiff's right to recover in a civil case; in a criminal case every material allegation in the indictment must be proved beyond a reasonable doubt, and every fact necessary to establish guilt must be proved in like manner. In civil cases where one side or the other has produced evidence which prima facie establishes a given fact, the burden of proof shifts to the party against whom the prima facie case is made; in criminal cases the burden never shifts, the presumption of the prisoner's innocence follows and shields him throughout the case until the measure of proof establishes his guilt beyond a reasonable doubt. In some states even the presumption of the sanity of the accused does not require him to prove his insanity when that is urged as a defense. It is incumbent on the state to establish his sanity beyond a reasonable doubt, though the general rule 29-Elem. Law.

in most of the states puts the burden of establishing the defense of insanity upon the defendant. So where the defense of self-defense is urged in behalf of one on trial for homicide or assault and battery, the burden of proof is upon the state to negative it, though in a few states a contrary rule prevails. The same may be said of the presumption of guilt arising against one accused of larceny from the possession of goods recently stolen. Where the state undertakes to establish the guilt of the accused by circumstantial evidence consisting of a chain of facts, every fact essential to the continuity of the chain must be established beyond a reasonable doubt. The rule in such cases is that the facts proved must be absolutely inconsistent with the theory of the innocence of the accused.

§ 712. Special rules of evidence in criminal cases.— There are some other special rules of criminal evidence which should be noted. The dying declarations of the victim of homicide, if made when death is imminent and expected by the victim, are competent evidence to prove the circumstances attending the transaction, the name of the slayer, etc. The voluntary confessions of the accused are evidence against him; when made in open court they are called judicial confessions, and when made elsewhere they are called extra-judicial confessions. When an accomplice turns state's evidence and testifies against his confederates, his evidence is received, but is not enough to establish the guilt of the accused unless it is corroborated by other witnesses or other facts in evidence. When two accomplices testify, the evidence of one can not be considered as a corroboration of the evidence of the other. If the accused is not content with the presumption of innocence which the law allows in his favor, but desires to strengthen it, he may do so by introducing

proof of his good character. When he does so, however, the state may meet it by contrary proof.

§ 713. Final arguments of counsel.-When the evidence is all in, counsel address the jury. They are required to confine themselves to a discussion of questions of fact, for the court is to charge the jury as to the law of the case. The jury are bound by their oaths to find the facts according to the evidence as given by the witnesses and the law as given to them by the court. In some states, however, the law makes the jury the judges of the law as well as the facts, and where this is the case, counsel have a larger liberty and may argue to the jury that the law is different from that which is given to them by the court. The cases are rare, however, in which counsel resort to this practice. It is common practice in the English courts and in the federal courts for the presiding judge to comment upon and sum up the evidence in his charge, but this is seldom done in the state courts, where the statutes generally require the judge, when so requested, to submit his instructions to the jury in writing.

§ 714. Conduct of jury-Verdict.-The rules regulating the conduct of the jury after they retire to deliberate upon their verdict and as to the manner of signing and returning the verdict into court are the same in criminal as in civil cases. The defendant has a right to demand that the jury be polled, which is done by calling each juror by name and asking him if the verdict signed by the foreman is his verdict. If any one of the twelve answers in the negative the whole jury are sent to their room for further deliberation. When it is returned into court the verdict is recorded by the clerk.

§ 715. Motion for new trial-Arrest of judgment— Execution.-After verdict the defendant may move for a new trial: (1) For newly-discovered evidence, when it is made to appear that the defendant by the exercise of due diligence could not have produced it at the trial, that the newly-discovered evidence is material and not merely cumulative, that is, tending to make further proof of a fact upon which some evidence was produced at the trial; (2) irregularity in summoning the jury; (3) misconduct of jurors; (4) tampering with jurors; (5) bias or hostility of jurors, which was unknown to defendant when they were accepted and sworn; (6) that the verdict was contrary to evidence; (7) that the verdict was contrary to law. If the motion for a new trial is denied, the defendant may move in arrest of judgment, and to sustain this motion he must show that there are defects in the record of the proceedings which are not cured by the verdict. If these motions are denied sentence is pronounced and the judgment of the court is executed, unless upon appeal or writ of error a higher court reverses the judgment.