§ 348. Decision on application for stay, to be indorsed on papers and filed. When an application for an order to stay the trial is made to the supreme court, it must indorse its decision on the affidavits or other papers presented, and cause them to be immediately filed with the clerk of the court in which the indictment is pending. New. § 349. If application for stay be denied, no other application can be made. If the application for an order to stay the trial has been made before one judge and denied, a similar application cannot be made to another judge. New. § 350. Violation of last section a misdemeanor and contempt, and order of removal to be vacated. A violation of the last section is punishable not only as a misdemeanor but as a contempt of the court in which the indictment is pending; and that court must vacate an order of removal made in violation thereof. New. People ex rel. Munsell v. Oyer, etc. (1885), 3 Crim. Rep. 216. § 351. Order of removal to be filed, and pleadings and proceedings to be transmitted. If the supreme court order the removal of the action, a certified copy of the order for the purpose must be delivered to and filed with the clerk of that court where the indictment is pending, who must thereupon transmit the same, with the pleadings and proceedings in the action, including all undertakings for the appearance of the defendant or of the witnesses, or a certified copy of the same, to the court to which the action is removed. New. People v. Hall (1901). 169 N. Y. 184, 192; People v. Fishman (1909), 64 Misc. 256, 119 N. Y. Supp. 89. § 352. Proceedings on removal, if defendant be in custody. If the defendant be in custody, and the removal be into another county than that where the indictment is pending; the order must county where he is imprisoned, to the custody of the proper officer of the county to which the action is removed, and he must be forthwith removed accordingly. New. § 353. Order for removal must be filed before a juror is sworn; authority of the court to which indictment is removed. An order for the removal of the action is of no effect unless a certified copy thereof be filed, as required by section three hundred and fifty-one, before a juror is sworn to try the indictment. When thus filed, the court to which the action is removed must proceed to trial and judgment therein. New. People v. Hall (1901), 169 N. Y. 184, 192; People v. Fishman (1909), 64 Misc. 256, 119 N. Y. Supp. 89. TITLE VI. OF THE PROCEEDINGS OF THE INDICTMENT BEFORE TRIAL. CHAPTER I. The mode of trial. II. Formation of the trial jury. III. Challenging the jury. CHAPTER I. THE MODE OF TRIAL. SECTION 354. Issue of fact defined. 355. How tried. 356. Appearance. 357. Preparation for trial. § 354. Issue of fact defined. An issue of fact arises, 1. Upon a plea of not guilty; or 2. Upon a plea of a former conviction or acquittal of the same crime. New. People ex rel. Mullen v. Coler (1901), 61 App. Div. 540, 70 N. Y. Supp. 639; People v. Connor (1892), 65 Hun 396, 20 N. Y. Supp. 209; People v. Haight (1883), 3 Crim. Rep. 62; People v. Fanshawe (1892), 8 Crim. Rep. 344. § 355. How tried. An issue of fact must be tried by a jury of the county in which the indictment was found, unless the action be removed, by order of the supreme court, into another county, as provided in the second subdivision of section three hundred and forty-four. (Amended by L. 1895, ch. 880. In effect Jan. 1, 1896.) Derivation: 4 R. S. 733 § 1. People ex rel. Mullen v. Coler (1901), 61 App. Div. 540, 70 N. Y. Supp. 639; People v. Haight (1883), 3 Crim. Rep. 62; People v. Smith (1902), 172 N. Y. 210, 227. § 356. Appearance. 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. Derivation: 4 R. S. 734 § 13. People v. Thorn (1898), 156 N. Y. 296; People v. Miller (1901), 63 App. Div. 13, 71 N. Y. Supp. 212; People v. Palmer (1887), 5 Crim. Rep. 106, 43 Hun 407; Vogel v. American Bridge Co. (1903), 88 App. Div. 68, 84 N. Y. Supp. 799; People v. Welsh (1903), 88 App. Div. 68, 84 N. Y. Supp. 703. § 357. Preparation for trial. After his plea, the defendant is entitled to at least two days to prepare for his trial, if he require it. New. CHAPTER II. FORMATION OF THE TRIAL JURY. SECTION 358. Jurors in criminal courts. § 358. Jurors in criminal courts. The trial jury is formed, as prescribed by the Code of Civil Procedure and the Judiciary Law. (Amended by L. 1909, ch. 66, § 5. In effect Feb. 17, 1909.) New. People v. Johnston (1888), 110 N. Y. 134, 46 Hun 672, 7 Crim. Rep. 403; People v. Jackson (1888), 111 N. Y. 362, 6 Crim. Rep. 399; People v. Decker (1898), 157 N. Y. 190; People v. Wennerholm (1901), 166 N. Y. 576, 15 Crim. Rep. 398. |