made to the array after challenging individuals. All the objections. to a juror must be stated at once. If a juror be challenged by one side without success, he may still be challenged by the other; and if first challenged for cause without success, he may still be challenged peremptorily. By the act of Congress, if the prisoner challenge peremptorily more than his number, he is treated as standing mute, and the trial proceeds; but we have no such provision. When a panel of twelve has thus been completed, the oath or affirmation is administered, "well and truly to try, and true deliverance make between the State of Ohio and the prisoner at the bar, and a true verdict to give, according to the evidence." (a) The oath says nothing about the law, yet there is an opinion very prevalent in this State, that in criminal cases jurors are judges both of law and fact. This absurd idea is, perhaps, founded upon an expression in the constitution on the subject of libels, "that in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases." But this, if it means any thing, which may well be doubted, does not by any means sustain the inference just mentioned; on the contrary, it indicates that the jury are to take the law in all cases from the court; for the very sufficient reason that they do not of themselves know what the law is. Again, the language of our statute has been thought to favor the same opinion. But this merely asserts the right of the jury in all cases to render a general or special verdict at their pleasure. And although a general verdict of guilty or not guilty does decide both law and fact, yet if this verdict be against the law as laid down by the court, it will, as a matter of course, be set aside on application; though we have no means, as in England, of punishing jurors for so doing. In no sense, therefore, are jurors judges of the law in criminal cases, more than in civil. (b) Witnesses. (c) Both the federal and State constitutions, as we (a) A prisoner is not entitled to reserve his peremptory challenges until a full panel of twelve not liable to successful challenge for cause shall be selected. He may be required by the court to make his peremptory challenge, after having exhausted challenges for cause, to each juror as called, and upon failure to make a valid challenge the juror called may be at once sworn. Schuffin v. The State, 28 Ohio State, 233. (b) And so it has been decided in Ohio. See ante, p. 199, note (d). Contra in Vermont. ter (Aug. 1860), p. 609. Robbins v. The State, 8 Ohio State, 131. (c) See, on the general subject of evidence in criminal cases, M'Nally's Criminal Evidence, Roscoe's Criminal Evidence, and the third volume of Greenleaf's Evidence. By the act of April 17, 1867, 64 Ohio Laws, 260, all criminals are made competent witnesses on their own behalf, at their own request. But if they do not testify, it is not to create any presumption against them, nor shall any reference be made to or any comment upon their not testifying. This provision is repeated in § 140 of the Code of Criminal Procedure, and is now found in the statutes of most of the States. When the accused testifies on his own behalf, his cross-examination can be carried to the same extent, and is subject to the same limitations, as the crossexamination of any other witness. Commonwealth v. Mullen, 97 Mass. 545; Hanoff v. State, 37 Ohio St. 178; Farley v. State, 57 Ind. 321; State v. Cohn, 9 Nev. 179; People v. McGunnigill, 41 Cal. 429. have seen, declare that the prisoner "shall have compulsory process for obtaining witnesses in his favor;" or, in other words, that he shall have the same means of compelling the attendance of his witnesses as can be had on the other side, except that he cannot have them recognized; and the statutory provisions carry out this principle. Subpoenas are first issued, and if the witnesses refuse to obey them, they may be brought in by attachment; but the general rules of evidence are nearly the same as in civil cases, and have been already stated. There are, however, some peculiar provisions respecting evidence in criminal cases, which require to be noticed. In the first place, no man can be forced "to give evidence against himself." There can be no such thing as torture to extort confessions. This is prohibited by both constitutions. Again, every prisoner has a right to "meet his witness face to face." (a) This excludes the evidence of depositions, except with the consent of the prisoner. In treason, as we have seen, there must be at least two witnesses to the same overt act, or a confession made in open court." To prevent witnesses from being tampered with, it is made penal, as we have seen, to bribe them, and for them to accept a bribe. That they may not be prevented from attending court, they are privileged from arrest for civil matters, while going, attending, and returning; and that they may not refuse to testify, when before the court, such refusal is made penal. The subpoena in criminal cases runs throughout the State; and that witnesses may be assured of receiving their fees, they are paid by the county. By the acts of Congress, subpoenas in criminal cases run throughout the United States; and the witnesses are held to be privileged, without express provision. The Verdict. (b) When the testimony has been closed, and the cause argued by the counsel on each side, it is given to the jury under instructions from the court as to matters of law. (c) The jury then retire for deliberation, under the charge of an officer, who is sworn to see that no person has access to them, or com (a) This provision does not exclude evidence of the statements of a deceased witness under oath at a former trial between the same parties. Summons . The State, 5 Ohio State, 325. Or of dying declarations. Robbins v. The State, 8 id. 131. See State v. Gillick, 7 Clarke (Iowa), 287. Acts and declarations of a conspirator, when a part of the res gesta, are admissible, after proof of the conspiracy, to charge a fellow-conspirator. Patton v. The State, 6 Ohio State, 467. A full and liberal cross-examination of accomplices should be permitted, and it will be error to restrict it too closely. Lee v. The State, 21 Ohio State, 151. Evidence of voluntary confession is admissible. Fouts . The State, 8 id. 98. In prosecutions for rape, the declarations of the prosecutrix made immediately after the commission of the offence, are admissible to corroborate her testimony. M'Combs v. The State, 8 id. 643. to incompetency as a witness caused by conviction for forgery, see Poage v. The State, 3 Ohio State, 229. As (b) See 4 Black. Com. chap. 27; 1 Chitty's Crim. Law, 636; Hurley v. State, 6 Ohio, 399. (c) The order of proceedings on trial is regulated in § 151 of the Code of Criminal Procedure. Under the provisions of this section it has been held that the court is not bound to reduce a charge to writing, unless requested so to do before the argument of the case to the jury nor to deliver a written charge until after the close of the argument, if any argument is made. Blackburn v. The State, 23 Ohio St. 146. munication with them, unless by permission of the court. They cannot separate until they agree upon a verdict, or are discharged by the court. Formerly, they could not be discharged until they came to an agreement one way or the other; and if it became necessary for the court to remove, the jury were carried after them in a cart; nor could they in the mean time take any nourishment of any description; in order, it would seem, that starvation might produce unanimity; but both these absurdities are now done away. The jury may take nourishment under permission from the court; and whenever the court are satisfied that there is no prospect of their agreeing upon a verdict, they may be discharged, and the cause tried over again, as if no trial had taken place. But the principle is still retained, that the jury cannot separate, unless by agreement of counsel, after the trial commences, until their verdict be rendered, or they be discharged. If, therefore, the court adjourn during the trial, from day to day, the jury, unless by consent, must remain together under the charge of the officer. (a) Should one of the jurors be taken ill, or die, his place cannot be supplied; but the rest must be discharged, and a new jury called; and it is on this principle that a juror is sometimes withdrawn by agreement, in order to effect a continuance of the cause. We have seen that the verdict may be general or special, at the option of the jury. It cannot be sealed up and sent into court, as in civil cases; but must be delivered personally in open court, all the jurors being present; and in capital cases, at least, the verdict must be delivered in the presence of the prisoner. (b) If it be manifestly an improper verdict, the court may at once send the jury back to reconsider it; but when it has been once recorded, it must stand unaltered, and a juror cannot himself contradict it. But a request by the prisoner that the jury be polled is never refused. This consists in calling upon each juror to say whether the verdict reported by the foreman is his verdict, and can only be done at the time the verdict is brought in. If any juror then dissents, it is no verdict. Should it be an acquittal, the prisoner is entitled to an immediate discharge; for proceedings are at an end. The government cannot move for a new trial, or an arrest of judgment, or have a writ of error. (c) But if the verdict be against the prisoner, he may (a) Under the original § 164 of the Code of Criminal Procedure, the jury in cases of felonies were not permitted to separate after being sworn. This provision was held mandatory. Cantwell v. The State, 18 Ohio St. 477. This was changed by the amendment of January 5, 1871, and they may now be permitted to separate before the final submission of the case to them, but not afterwards. After final submission, the sepa ration of one of the jurors from his fellows, for the purpose of getting and drinking intoxicating liquor, if unexplained, or shown to be excusable, will entitle the prisoner to a new trial. Weis . The State, 22 Ohio State, 486. (b) But it has been held that where the accused, who has given bail, absconds during the trial, the verdict may be rendered in his absence. Fight v. State, 7 Ohio, part 1, 180. (c) By act of March 16, 1867, the prosecuting attorney can except to the ruling of the court, and take a writ of error to such ruling to the supreme court, but the take either or all of those steps, as his counsel may advise; the two first before judgment, the last after judgment. He cannot appeal for our law allows no appeal in criminal cases. Perhaps it would have been well to allow an appeal in capital cases; but instead of this, our law gives the prisoner his option in these cases, upon being arraigned, to choose the court in which he will be tried. (a) After the verdict, sentence will follow, unless prevented in some one of the ways now to be described. New Trial. (b) Both the federal and State courts have power to grant new trials, for reasons for which new trials have usually been granted in courts of law; and the power extends to all offences; but not more than two new trials can be allowed in the same cause. The motion must be made and disposed of at the same term with the trial; and it cannot be made after the hearing of a motion in arrest of judgment. The grounds for a new trial are the same as in civil cases; and only need to be recapitulated. 1. Misbehavior of the jury. 2. Improper instructions by the court. 3. The verdict being contrary to law or evidence. 4. The improper admission or rejection of evidence. 5. The discovery of new and material evidence since the trial. These are all matters of fact, which do not appear of record, and which cannot, therefore, be taken advantage of in any other way, unless made part of the record by a bill of exceptions, as before explained. The allowance of a new trial vacates the proceedings on the first trial; (c) and the cause is continued, as if no jury had been impanelled. A venire facias de novo may also be resorted to, which is the same as a new trial; except that it is allowed only on a special verdict, and for the purpose of curing some defect in such verdict. Arrest of Judgment. (d) The motion in arrest of judgment must be founded on some substantial error apparent on the record, which error may have occurred at any stage of the proceedings; for as no defects can be amended, so none are cured by the verdict. Whenever a demurrer would have been sustained, judgment will be arrested. The motion ought to be made before sentence is pronounced; and if notice be given of it, sentence will be stayed; but as the court have control over their judgments during the term, the motion may be heard even after sentence. The effect of arresting the judgment, is to vacate all the proceedings, and set the prisoner at large; but this is no bar to a new indictment for the decision shall not affect the decision of the court in the case in which the error is claimed to occur, but only determine the law for similar cases afterwards. (a) All criminal cases are now tried in the court of common pleas, except some minor ones of which the magistrates, police courts, and probate courts have jurisdiction, and the criminal has no choice of courts. (b) See 1 Chitty's Crim. Law, 654. (c) In some of the States it has been held that it vacates it only as to the verdict of conviction on one count or of one grade of offence, and not as to the corresponding verdicts of acquittal on the other counts or for the other grades. In this State, however, it is held to vacate the whole verdict, and that the case stands just as if it had never been tried. State v. Behimer, 20 Ohio St. 572. (d) See 1 Chitty's Crim. Law, 661. same cause, as we have seen before; for the jeopardy has not existed until the rendition of the judgment. § 244. Judgment. (a) As we allow no compromise between the prosecutor and offender after verdict, and no benefit of clergy, it follows, that unless a new trial be granted, or the judgment be arrested, it must be rendered during the term. This judgment is the sentence of the law upon the verdict, and the terms judgment and sentence are synonymous. The form of the judgment of course varies to suit the punishment annexed to each offence; as we have seen, the court usually exercises a discretion as to the amount of punishment, with certain fixed limits. When the offence is below capital, the judgment must include costs against the defendant; and in this State, as we have seen, for certain minor offences, if the defendant be acquitted, there must be a judgment for costs against the prosecuting witness who has indorsed the indictment, unless the court should think he had good cause for instituting the prosecution. But if the defendant be convicted, the judgment may require him to give security for good behavior. If the sentence be death, it can only be by hanging; and in case of murder, the federal courts may add that the body be given up for dissection. When the sentence has been pronounced, it must be carried into execution, unless prevented by a writ of error, pardon, reprieve, or commutation, which are next to be considered. 1. Writ of Error. (b) In this State no writ of error was allowed in criminal cases until 1831. But now it may be allowed in all criminal cases, upon application on behalf of the defendant. (c) In (a) See, Chitty's Crim. Law, chap. 16. (b) This writ is the same in form as that used in civil cases, of which an example has been given. The record is as follows: At a court of -, for the county of and the State of- begun and holden at ―, by and before [name the judges], the grand jurors for the said county, to wit [name the jurors], returned to the said court an indictment against -, in the words and figures following, to wit: [copy the indictment and indorsements thereon]; and afterwards, to wit, on the by order of the prosecuting attorney aforesaid, the following writ of capias ad respondendum was issued out of the clerk's office of the court aforesaid, to wit: copy the writ and indorsements]; and afterwards, to wit, on the, at the term aforesaid, the said writ was returned to the court aforesaid by the said sheriff, indorsed as follows, to wit: [copy the return]; and the said sheriff also returned with the said writ the following recognizance of bail, to wit: [copy the recognizance]; and afterwards, to wit, on the at the term aforesaid, the said in proper person comes into court; and being arraigned upon the said indictment, and having heard the same read, says: [copy the plea, replication, &c., making up the issue]; and afterwards, to wit, on the at the term aforesaid, came as well the said prosecuting attorney as the said -, together with his counsel, and thereupon came a jury, to wit [give their names], who being impanelled and sworn the truth to speak upon the issue joined between the State aforesaid and upon their oaths did say: [copy the verdict;] and thereupon the said the court to grant him a new trial, and assigned the following reasons, to wit: [copy the reasons]; which motion, after argument heard thereon, the court overruled; and thereupon it was considered by the court that [copy the judgment]. and - aforesaid, moved On the subject of a writ of error in criminal cases, see Baldwin v. State, 6 Ohio, 15; Kazer's case, 5 id. 544; Kinsley v. The State, 3 Ohio State, 508; Gerhard v. The State, 3 id. 508; Montgomery v. The State, 7 id. 107. (c) By the provisions of the Code of Criminal Procedure the prosecuting attor |