4. Defendant to be present. No person indicted for any felony, can be tried, unless he be personally present during such trial; nor can any person indicted for any other offense, be tried unless he be present either personally or by his attorney. And every person indicted shall be admitted to make any lawful proof by competent witnesses on oath, or other lawful testimony. (i) (12) (i) 2 R. S., 734, § 13; 1 Wend., 191. (12) By the common law, a defendant might be tried for a misdemeanor in his absence, after he had once appeared. But the common law is so far changed by statute, in this state, that no one indicted for a misdemeanor can be tried unless he be present, either personally or by his attorney duly authorized for that purpose. (Blythe v. Tompkins, 2 Ab. Pr., 468.) A person convicted of a misdemeanor may be sentenced to pay a fine, although he is not present in court. (Id.) The judgment record of a conviction for felony need not show the constant presence of the defendant, during the trial. (Stephens v. People, 19 N. Y., 549; S. C., 4 Park., 396.) If, after the jury have retired for deliberation, they return into court and ask certain questions as to the evidence, it is error in the court to answer the same, in the absence of the prisoner. He is entitled to be personally present when any instruction is given to the jury, having a tendency to influence the verdict. (Maurer v. People, 43 N. Y., 1.) A sentence inflicting corporeal punishment can not be pronounced in the absence of the defendant. But the personal presence of the defendant is not necessary where a fine, only, is imposed. (People v. Clark, 1 Park., 360.) And on a writ of error, brought to reverse a judgment, in a capital case, the personal attendance of the defendant on the argument, or at the decision, in the appellate is not necessary, to give such court jurisdiction. (Id.) A prisoner indicted for misdemeanor can not be tried in his absence, unless he has unequivocally waived his right, and given express authority to his attorney to submit to such trial. (People v. Wilkes, 5 How. Pr., 105.) The objection that the judgment record does not show the prisoner to have been present in court during the whole of the trial, nor at the rendition of the verdict, is not available on error, when it appears by the record that he was personally present at the impanelling of the jury, and when the judgment was rendered; and when the return of the minutes of the court, made to a writ of certiorari, shows that the jurors were polled, on giving their verdict; and that the prisoner was present on every day of the trial previous to the rendering of the verdict. (Stephens v. People, 4 Park., 396.) But where the record failed to show that the prisoner was asked by the court, after the verdict was rendered and before judgment was pronounced thereon, what he had to say why judgment should not be pronounced against him; or that any opportunity was given him by the court, at this stage of the proceedings for that purpose; held, that this omission was error, for which there must be a new trial. (Messner v. People, 45 N. Y., 1.) The Code of Criminal Procedure directs that— If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant, if he appear by counsel; but if the indictment be for a felony, the defendant must be personally present. (§ 356.) Preparation for trial.]-After his plea, the defendant is entitled to at least two days to prepare for his trial, if he require it. (§ 357.) Postponement on account of absent witnesses. People v. Vermilyea, 7 Cow., 369. Affidavits therefor, what to contain. Broad's case, 3 C. H. Rec., 7; Peo. v. Wilson, 3 Park., 199; Peo. v. Horton, 4 ib., 222. No exception lies to refusal to postpone trial for witnesses. Eighmy v. Peo., 79 N. Y 546. 5. Right to counsel. In every trial on impeachment or indictment, the party accused is to be allowed counsel, as in civil actions. (k) (13) 6. Witnesses. The provisions of law in civil cases, relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, &c., contained in the Revised Statutes are mostly superseded by the provisions of the Codes. (14) (k) 1 R. S., 7th ed., 269, § 12; Const., art. 1, § 6. (13) Under the Code of Civil Procedure, the defendant in a criminal action is entitled to be allowed counsel, as in civil actions, or he may be allowed to appear and defend in person and with counsel. (§ 8.) If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant, if he appear by counsel; but if the indictment be for a felony, the defendant must be personally present. (§ 356.) It is the right and duty of courts to assign counsel for the defense of destitute persons indicted for crime; and it is the duty of counsel to obey the order of the court. (People v. Supervisors, 1 Sheld., 517.) But where the court assigns counsel to defend a prisoner, the counsel's claim for his services is not a legal charge against the county. (People ex rel. Ransom v. Supervisors of Niagara County, 73 N. Y., 622.) (14) WITNESSES. The Code of Criminal Procedure declares that, in a criminal action, the defendant is entitled To produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine, the witness, or, where the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally according to §§ 219 and 220, the deposition of the witness may be read upon its being satisfactorily shown to the court that he is dead, or insane, or can not with due diligence be found in the state. (§ 8, sub. 3.) Const. of N. Y., art. 1, § 6. See Peo. ex. rel. Garling v. Van Allen, 55 Clerk must issue blank subpoenas for witnesses for defendant on trial.]—The clerk of the court at which an indictment is to be tried, must, at all times, upon the application of the defendant, and without charge, issue as many blank subpoenas, under the seal of the court and subscribed by him as clerk, for witnesses within the state, as may be required by the defendant. (§ 611.) Form of subpoena.]-A subpoena, authorized by sections 607, 608, 609, and 610 must be substantially in the following form: 7. Discharging one of several defendants. Whenever two or more persons shall be included in the same indictment, and it shall appear that there is not sufficient evidence to "In the name of the people of the state of New York: To A. B. or or as the case may "You are commanded to appear before C. D., a justice of the peace of the town of [or "the grand jury of the county of "the court of sessions of the county of be,] at [naming the place,] on [stating the day and hour,] as a witness in a criminal action prosecuted by the people of the state of New York, against E. F. day of "Dated at the town of , [as the case may be,] the "G. II., justice of the peace," [or "I. K, district attorney," or "By order of the court, L. M., clerk," as the case may be.] (§ 612.) Requirement in subpœna to produce books, papers and documents. If books, papers or documents be required, a direction to the following effect must be contained in the subpoena: "And you are required also, to bring with you the following," [describing intelligibly the books, papers or documents required.] (§ 613.) Subpoena, by whom served.]—A peace officer must serve, in his county, city, town or village, as the case may be, any subpœna delivered to him for service, either on the part of the people or of the defendant; and must make a written return of the service, subscribed by him, stating the time and place of service, without delay. A subpœna may, however, be served by any other person. (§ 614.) Mode of service.-A subpoena is served, by delivering it, or by showing it, and delivering a copy thereof to the witness personally. ($ 615.) Disobedience to subpoena or refusal to be sworn or to testify, how punished.]-Disobedience to a subpoena, or a refusal to be sworn or to testify, may be punished by the court or magistrate, as for a criminal contempt in the manner prescibed in the Code of Civil Procedure. (§ 619.) See Code Civil Proc., §§ 8-13, 853-863. Witness is to be allowed a reasonable time to attend. Wilkie v. Chadwick, 13 Wend., 49. Extreme poverty will excuse non-attendance. Peo. v. Davis, 15 Wend., 602. When subpoena is defective. Peo. v. Dutcher, 3 Abb. N. S., 151. When not. Peo. v. Van Wyck, 2 Cai., 233. A refusal of a witness to answer before grand jury, may be punished as a contempt in court. Peo. v. Kelly, 24 N. Y., 74; Peo. v. Fancher, 2 Hun, 226. Proof for an attachment against witness failing to answer need not be in writing. Baker v. Williams, 12 Barb., 527. Compensation of witnesses.]-The rules as to the compensation of witnesses attending trials in criminal cases, prescribed by special statutes, are continued as there defined. (§ 394.) put any defendant on his defense, it shall be the duty of the court to order such defendant to be discharged from such indictment, before the evidence shall be deemed to be closed. (7) 8. Separate trials. In When two or more defendants shall be jointly indicted for any felony, any one defendant requiring it, shall be tried separately. other cases, defendants jointly indicted shall be tried separately or jointly, in the discretion of the court. (m) (15) (7) 2 R. S., 735, § 19; 3 id., 7th ed., 2569. (m) Id., § 20; 1 Bald., 78; 6 Hun, 86; 4 Mason, 158. Where an indictment is found without a preliminary examination, the accused is entitled to a list of the witnesses examined before the grand jury. (People v. Naughton, 38 How., 430; S. C., 7 Ab. Pr. [N. S.], 421.) On the trial of a capital case, it is in the discretion of the court to require all the witnesses, except the one under examination, to leave the court room, during such examination. (People v. Green, 1 Park., 11.) After the prosecution has closed, the prisoner has no right to ask the court to require the district attorney to call and examine other witnesses. (People v. Cunningham, 6 Park., 398.) (15) It is a matter of discretion to allow the district attorney to try prisoners, jointly indicted for a misdemeanor, jointly or separately, as best consists with the advancement of justice. Such order may be made on motion of the district attorney. (People v. Stockham, 1 Park., 424.) But several persons, jointly indicted, are not entitled to demand separate trials, where none of the acts charged amount to a felony at common law, being for a riot, and for a riotous assault and battery; where there is no allegation that the intent was felonious, or that such weapons were used as would constitute the offense a felony. (People v. White, 56 Barb., 606; aff'd 32 N. Y., 465.) On an indictment for a misdemeanor only, the allowance of a separate trial is entirely in the discretion of the court, and the decision thereon is final. (Id.) Where two are jointly indicted for felony, and demand separate trials, they have not the right to elect which shall be first tried. That is a matter within the control of the district attorney, with which, as a general rule, the court will not interfere. (People v. McIntyre, 1 Park., 371; Patterson v. People, 46 Barb., 625.) Where four persons are jointly indicted for felony, three of them have no right to insist that the fourth shall be tried jointly with them. (Armsby v. People, 2 T. & C., 157; Kelley v. People, 55 N. Y., 565.) Where two or more persons are jointly indicted for a felony, either one is absolutely entitled to a separate trial, if he demand it. And where such demand is made after a jury has been impanelled, and a witness sworn, the jury and witness must be resworn. (Babcock v. People, 15 Hun, 347.) By the Code of Criminal Procedure When two or more defendants are jointly indicted for a felony, any defendant requiring it, must be tried separately. In other cases, defendants, jointly indicted, may be tried separately or jointly, in the discretion of the court. (§ 391.) Where four are jointly indicted, three of them can not insist upon the fourth being tried with them. Armsby v. Peo., 2 S. C., 157; Kelley v. Peo., 55 N. Y., 565. District attorney determines order of separate trials. Patterson v. Peo., 46 Barb., 625. Upon an indictment against several defendants, any one or more may be convicted or acquitted. (Id., § 292.) [ * 359 ] *9. Entering a nolle prosequi; dismissal of action. The form of a nolle prosequi is, "The attorney general of the state of New York (or the district attorney of the county of S.), saith that he will not prosecute further on behalf of the people against the defendant." And if the defendant be in custody at the time, an order is, in most cases, added that he be discharged from his imprisonment. (n) A nolle prosequi, and a consequent discharge from custody is not an acquittal or discharge from further prosecution, and is, therefore, no bar to a subsequent indictment for the same offense. (o) . The common law rules, and the provisions of the Revised Statutes on this subject, however, are no longer applicable in this state. (16) 10. Commissions to examine witnesses abroad. The former statutory provisions on this subject are superseded by the Code of Criminal Procedure. (17.) (n) 3 Rob. Prac., 127. (0) 2 Va. Cas., 345. 2 Mass. Rep., 172. 1 Chit. Cr. L., 478. 7 Pick., 179. 7 Conn. R., 418. (16) By the Code of Criminal Procedure, a nolle prosequi is abolished, and a substitute for it provided. By § 671, "The court may, either of its own motion, or upon the application of the district attorney, and in furtherance of justice, order an action, after indictment, to be dismissed." By § 672, "The entry of a nolle prosequi is abolished; and neither the attorney general, nor the district attorney, can discontinue or abandon a prosecution for a crime, except as provided in section 671." Dismissal, when a bar, and when not.-An order for the dismissal of the action, as provided in this chapter, is a bar to another prosecution for the same offense, if it be a misdemeanor; but it is not a bar, if the offense charged be a felony. (Id., § 673.) (17) EXAMINATION OF WITNESSES ON COMMISSION. The Code of Criminal Procedure contains the following provisions: Witness residing out of the state, to be examined for defendant, as provided in this chapter.]-When an issue of fact is joined upon an indictment, the defendant may have any material witness residing out of the state, examined in his behalf, as prescribed in this chapter, and not otherwise. (§ 636.) In what cases defendant may apply for order to examine witnesses on commission.]-When a material witness for the defendant resides out of the state, the defendant may apply for an order that the witness be examined on a commission. (§ 637.) Commissions are statutory proceedings solely, and must be strictly pursued. |