§ 473. If, before the conclusion of the trial, a juror become sick, so as to be unable to perform his duty, the court may order him to be discharged. In that 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 impannelled.

Declaratory of the existing rule.

§ 474. The court must decide all questions of law, which arise in the course of the trial.

In conformity with the law as it now stands.

§ 475. On the trial of an indictment for libel, the jury have the right to determine the law and the fact.

Taken from the constitutson, art. 1, sec. 8.

§ 476. On the trial of an indictment for any other of fence than libel, questions of law are to be decided by the court, saving the right of the defendant to except; questions of fact, by the jury. And although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court.

This section defines more clearly than it is understood at present, the line of demarcation between the duties of the court and of the jury. Nothing is more common, than for juries in criminal cases to be told that they are the judges of the law as well as of the fact; and as a matter of authority merely, the weight of the highest judicial names in this country may be cited in support of and against this proposi

tion. In this state, the balance of judicial authority is in favor of the principle, that the jury in criminal cases, are bound to take the law from the court, with the exception of the case of libel; in which, by the constitution, the right is expressly given to the jury to determine both the law and the fact.

To put an end, however, to all doubt on the subject, the Commissioners propose to declare the rule, in as clear and comprehensive terms as they have been able to devise, that on the trial of an indictment for any other offence than libel, questions of law are to be decided by the court, saving the right of the defendant to except; questions of fact by the jury; and that although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound nevertheless, to receive as law, what is laid down as such by the court.

The rule as to the relative duties of the court and jury, in respect to questions of law and fact, has been frequently misunderstood; and it has been very common to tell juries in criminal cases, that they are judges of the law and fact. This is not so. The rule in this state may now be considered settled, as laid down in this section. All the cases on the subject, as well as the principles applicable to it, have been reviewed, in the case of the People v. Pine, 2 Barb. Sup. Ct. Rep., 568-570, and the conclusion stated in this section, adopted as the true rule. The case of libel is of course an exception; having been made so by the constitution. See note to the last section, p. 223.

§ 477. In charging the jury, the court must state to them, all matters of iaw which it thinks necessary for their information in giving their verdict; and if it present the facts of the case, must, in addtion to what it may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact.

This section naturally arises out of the last, and is likewise in accordance with the existing rule.

§ 478. After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn, to keep them together in some private and convenient place, without food or drink, except bread and water, unless otherwise ordered by the court; and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict and to return them into court when they have so agreed, or when ordered by the court.

In accordance with the existing practice.

§ 479. 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.

This power is now exercised. It is, however, deemed proper, especially in connection with the provisions on the subject of bail, hereafter referred to, to make it a positive rule

CHAPTER II.

CONDUCT OF THE JURY, AFTER THE CAUSE IS SUBMITTED TO THEM.

SECTION 480. Room and accommodations for the jury after retirement, how pro

vided.

481. Accommodations for the jury, when kept together during the trial, or after retirement.

482, 483. What papers the jury may take with them.

481. May return into court, for information.

485. If, after retirement, a juror become sick or unable to act, jury to

be discharged.

486. Not to be discharged in any other case, unless there is no reasonable probability that they can agree.

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

488. Court may be adjourned during absence of jury, as to other business, but deemed open till verdict rendered or jury discharged. 489. Final adjournment of court discharges jury.

§ 480. A room must be provided by the supervisors of the county, (or if the trial be in a city court, by the corporate authorities of the city,) for the use of the jury, upon their retirement for deliberation, with suitable furniture, fuel, lights and stationery. If the supervisors or corporate authorities 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.

Jurors often complain that suitable conveniences are withheld from them; and it is well known that they are seldom furnished with means, such as stationery, to facilitate their labors. This section seems just in itself, and is moreover introduced to obviate the grounds of complaint referred

to.

§ 481. While the jury are kept together, either during the progress of the trial or after their retirement for de

liberation, they must be provided by the sheriff, upon the order of the court, at the expense of the county, (or if the trial be in a city court, at the expense of the city,) with suitable and sufficient food and lodging.

This section is founded on the same principle as the last, but applies only to the case of a jury kept together during the trial, and before the cause is submitted to them.

§ 482. 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 parts of public records or private documents, given in evidence, as ought not, in the opinion of the court, be taken from the person having them in possession.

The rule, as it exists at common law, is, that when the jury withdraw, they may take with them letters patent, deeds under seal, and exemplifications of depositions in equity, if the witnesses be dead; and with the assent of the parties they may take with them books, or writings under seal. Vicary v. Furthing, Cro. El. 411; Rex v. Burdett, 1 L. Raym. 148; S. C., 3 Salk. 645. The indefiniteness of this rule often leads to controversy at the close of the trial, and renders it proper that the rights of the jury in this respect should be more distinctly prescribed. The provision contained in this section, seems just and reasonable. Depositions are excepted, because, like all the rest of the evidence, the facts they contain should be left to the recollection of the jury. To permit the jury to take these, without at the same time furnishing them with notes of the other testimony, (which cannot be done,) would be to give an undue advantage to the testimony furnished by deposition.

§ 483. The jury may also take with them notes of the testimony or other proceedings on the trial, taken