to separate. R. 2 4802. C. '51, 3011. his own knowledge, the jury must return into court and the juror must be sworn as a witness, and examined in the presence of the parties, if his evidence be admissible. SEPARATION OF JURY. SEC. 4434. The jurors sworn to try an indictment, may, at any Jury permitted time before the final submission of the cause to them, in the discretion of the court, be permitted to separate, except where one of the parties object thereto, or be kept together in charge of proper officers. The officers must be sworn to keep the jury together during the adjournment of the court, and to suffer no person to speak to or communicate with them on any subject connected with the trial, nor do so themselves, and to return them into court at the time to which it adjourns. Not to com- C. '51, 3012. As to the propriety of not allowing fendant objects thereto, see The State the jury to separate when the de- v. Felter, 25-67. SEC. 4435. The jury, whether permitted to separate, or kept together in charge of sworn officers, must be admonished by the court that it is their duty not to permit any person to speak to or communicate with them on any subject connected with the trial, and that any and all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, or form or express an opinion thereon, until the cause is finally submitted to them. This admonition must be given or referred to by the court at each adjournment, during the progress of the trial, previous to the final submission of the cause to the jury. It need not appear of record that presumed that the court did its du'y the jury were properly admonisaed in this respect: The State v. Shelleprior to each adjournment; it will be dy, 8-477. TRIAL. SEC. 4436. The court shall, on the trial of every indictment, Minutes of tes- when requested by either party, keep, or cause to be kept, by timony kept. R. 4809. When several. Trial of libel. some person for that purpose by it appointed, full and accurate minutes of the testimony of each witness examined on the trial, showing the name of the witness, the place of residence, and his occupation, as well as of any oral evidence introduced, either by the state or defendant, after a plea or verdict of guilty, to be considered by the court in aggravation or alleviation of the punishment in pronouncing sentence against the defe:.dant, which shall be certified to be full and accurate by the judge, and signed by him, and filed with the clerk, and so marked by him, which shall be deemed a part of the record of the cause. The person who acts under such an appointment shall be entitled to such compensation for his services as may be allowed by the court, which shall be paid by the proper county, and shall be taxed as costs. SEC. 4437. Upon an indictment against several defendants, any one or more may be convicted or acquitted. SEC. 4438. On the trial of an indictment for a libel, the jury have the right to determine the law and the fact. Similar provision: See § 4102. other than C. '51, 3016. SEC. 4439. On the trial of an indictment for any other offense of offenses than libel, questions of law are to be decided by the court; saving libel. the right of the defendant and the state to except. Questions of R. 4812. fact are to be tried by jury. And although the jury have the power to find a general verdict which includes questions of law as well as fact, they are bound, nevertheless, to receive as law what is laid down as such by the court. INSTRUCTIONS. SEC. 4440. The court shall, on motion of either party, instruct Court instruct the jury on the law applicable to the case, which must always be jury R. 4813. in writing, signed by the judge and filed with the clerk, and so C. 31, 3017. marked by him, and it is to be deemed a part of the record of the cause, and no oral qualification thereof shall be permitted. The requirement that the judge shall sign the instructions given by him, is directory, and a failure to do so will not be ground for reversal, when no prejudice resulted therefrom to defendant: The State v. Stanley, 48-221. The giving of instructions in regard to an offense of a higher degree than that for which defendant is properly on trial, will be sufficient error to warrant a reversal, although he be only found guilty of an offense for The court may direct an acquittal Generally, as to instructions, see notes to § 2789. C. '51, 3018. SEC. 4441. Any instruction asked by either party to be given Same. by the court must be in writing, and must be either given or R4814. refused, and so marked and signed by the judge, and filed with the clerk, and so marked by him, and is to be deemed a part of the record. It may be qualified in writing by the court, but not orally, and the qualification must be distinguished, intelligibly, from the instruction as originally asked by the party, and signed by the judge. The supreme court, on appeal, will not pass upon instructions which have not been made part of the record, either by being signed as here required, or embodied in a bill of exceptions: The State v. Gebhardt, 13-473; The State v. Watrous, 13-489. But if they were properly passed upon by the court and embodied in a bill of exceptions, the failure to sign the instructions will not be ground of It is the better practice, as a rule, in charge. C. '51, 3019. SEC. 4442. After hearing the charge, the jury may either Deliberation: decide in court or may retire for deliberation. If they do not duty of officer agree without retiring, one or more officers must be sworn to keep R. 4815. them together in some private and convenient place without meat or drink, water excepted, and not to suffer any person to speak to or communicate with them, nor speak to or communicate with them themselves unless it be to ask them whether they have agreed upon their verdict, and not to communicate to any one the state of their deliberation or the verdict agreed upon, until after the same shall have been declared in open court, and received by the court, and to return them into court when they shall have so agreed upon their verdict, unless by permission or order of the court, or they be sooner discharged. It is not necessary that it appear | be presumed unless the contrary apaffirmatively that the jury were in pears: The State v. Pitts, 11-343. charge of a sworn officer. That will comes sick. DISCHARGE OF JURY. SEC. 4443. If before the conclusion of a trial a juror become When juror be sick so as to be unable to perform his duty, the court may order him to be discharged, and in such case a new juror may be sworn and the trial begin anew, or the jury may be discharged and a new jury then or afterwards be empaneied. R. 4804. C. '51, 3013. SEC. 4444. The court may also discharge the jury where it apWant of juris pears that it has not jurisdiction of the offense, or that the facts as charged in the indictment do not constitute an offense punishable by law. diction. R. 4793. C. 51, 3002. Same. C. 51, 3003. When offense another coun committed in ty. R. 8 4795. Papers trans- clerk. C. '51, 3005. charged: when. SEC. 4445. If the jury be discharged because the court has not jurisdiction of the offense charged in the indictment, and it appear that it was committed out of the jurisdiction of this state, the defendant must be discharged or ordered to be retained in custody a reasonable time, until the district attorney shall have a reasonable opportunity to inform the chief executive of the state in which the offense was committed of the facts, and for said officer to require the delivery of the offender. SEC. 4446. If the offense was committed within the exclusive jurisdiction of another county of this state, the court must direct the defendant to be committed for such time as shall be deemed reasonable to await a warrant from the proper county for his arrest; or, if the offense be bailable, he may be admitted to bail in an undertaking with sufficient sureties that he will, within such time as the court may appoint, render himself amenable to a warrant for his arrest from the proper county, and if not sooner arrested thereon, will attend at the office of the sheriff of the county where the trial was had, at a certain time particularly designated in the undertaking, to surrender himself upon the warrant, if issued, or that the bail will forfeit such sum as the court may fix, to be mentioned in the undertaking. SEC. 4447. In the case provided for in the last section, the clerk must transmit, forthwith, a certified copy of the indictment and all the papers in the action filed with him, except the undertaking mentioned in the last section, to the district attorney of the proper county. SEC. 4448. If the defendant be not arrested on a warrant from Defendant dis- the proper county he shall be discharged from custody, or his bail in the action shall be exonerated, or money deposited instead of bail shall be refunded, as the case may be, and the sureties in the undertaking must be discharged. 4757. C. 51, 3006. SEC. 4449. If he be arrested, the same proceedings must be When arrested. had thereon as upon the arrest of a defendant in another county on a warrant of arrest issued by a magistrate. R. 2 4798. C. 51, 3007. when facts do offense. R. 2 4799. C. '51.3008. SEC. 4450. If the jury be discharged because the facts set forth do not constitute an offense punishable by law, the court must order that the defendant, if in custody, be discharged there from, or if admitted to bail, that his bail be exonerated, or if he has deposited money instead of bail, that the money deposited be refunded, unless in its opinion a new indictment can be framed upon which the defendant can be legally convicted, in which case the court may direct that the case be submitted to the same or another grand jury. ant under bail SEC. 4451. When a defendant, having given bail, appears for When defendtrial, the court may, in its discretion, at any time after his appear- appears for ance for trial, order him to be committed to the custody of the trial. R. 4816. proper officer to abide the judgment or further order of the court; C. 51, 3020. and he shall be committed and held in custody accordingly. CHAPTER 28. OF THE CONDUCT OF JURY AFTER THE CAUSE IS SUBMITTED TO IT. R. 2 4817. SECTION 4452. Upon retiring for deliberation, the jury may Jury may take take with it all papers which have been received as evidence in papers the case, except depositions and copies of such parts of public C. 51, 3021. records or private documents as ought not, in the opinion of the court, to be taken from the person having them in possession. As applicable under this section, I see notes to § 2797. testimony. C. 51, 3022. information SEC. 4453. The jury may also take with them notes of the tes- And notes of timony or other proceedings on the trial taken by themselves or on any of them, but none taken by any other person. SEC. 4454. After the jury have retired for deliberation, if Disagreement : there be any disagreement between them as to any part of the tes- desired. timony, or if they desire to be informed on any point of law aris- R4819. ing in the cause, they must require the officer to conduct them into court, and upon their being brought in, the information required must be given in the presence of, or after oral notice to, the district attorney, and the defendant or his counsel. C. '51, 3023. R. 2 4820. SEC. 4455. If, after the retirement of the jury, one of them be Juror sick. taken sick so as to prevent the continuance of his duty, or any 51,3024. other accident or cause occur to prevent their being kept together for deliberation, the court may discharge them. R. 4821. SEC. 4456. Except as provided in the last section, the jury When discannot be discharged after the cause is submitted to them until charged. they have agreed upon their verdict and rendered it in open court, C. 51, 3025. less by the consent of both parties entered upon the record, or unless at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probablity that the jury can agree. The fact that, in the exercise of ant to be released, as having been sound discretion, the jury is thus dis- once in jeopardy: The State v. charged, does not entitle the defend- Vaughan, 29–286. R. 4822. SEC. 4457. In all cases where a jury is discharged or prevented New trial. from giving a verdict by reason of any accident or other cause, c. 51, 3026. except where the defendant is discharged from the indictment Court may C. '51, 3027. Same. 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 of the court. SEC. 4458. While the jury is absent the court may adjourn from time to time as to other business, but it shall be nevertheless deemed open for every purpose connected with the cause submitted to the jury until a verdict be rendered or the jury is discharged. SEC. 4459. A final adjournment of the court discharges the jury. CHAPTER 29. When jury have agreed. R. 4825. C. '51, 3029. OF THE VERDICT. SECTION 4460. When the jury has agreed upon its verdict, it must be conducted into court by the officer having it in charge. The names of the jurors must then be called, and if a do not appear the rest must be discharged without giving a verdict. In such case the cause may again be tried at the same or another term. The provision as to calling the names of the jurors is directory only, and a failure to observe it will not be error sufficient to reverse the judgment unless prejudice is shown: The State v. Burge, 7-255. SEC. 4461. If the indictment be for a felony, the defendant must be present at the rendition of the verdict. If it be for a m spresent: when. demeanor, the verdict may be rendered in his absence. Defendant R. 4826. C. '51, 3030. Verdict rendered. R. 2 4827. C. '51, 3031. General or General. C. '51, 3033. SEC. 4462. When the jury have answered to their names, the court or the clerk shall ask them whether they have agreed upon the verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same. No particular form of words is pre- quiring the jury to declare their vecscribed to be used by the court in re-dict: The State v. Collins, 32–36. SEC. 4463. The jury may either render a general verdict, or, where they are in doubt as to the legal effect of the facts proven, they may, except upon an indictment for libel, find a special ver dict. There is no provision for a submis-actions: The State v. Ridley, 48-370. sion to the jury of particular ques- As to special verdict in civil cases, tions of fact, on the trial of criminal see § 2808. SEC. 4464. A general verdict upon a plea of not guilty is either "guilty" or "not guilty," which imports a conviction or acquittal on every material allegation in the indictment. Upon a plea of a former conviction or acquittal of the same offense it is either "for the state" or "for the defendant.” A verdict expressly reciting that | indictment, is a general and not a the jury find the defendant "guilty special verdict: The State v. Turner, of aiding and concealing," etc., thus 19-144. specifying the crime charged in the |
