I* 6 There must be first an information or charge, and the defendant must be summoned and have an opportunity to make his defencE ib 7 The evidence in support of the charge, must be such as the common law approves, unless specially di- rected otherwise by statutE ib 6 There must be a conviction, judg- ment and execution, all according to the course of the common laW t'6 9 The record is designed to show the regularity of the proceedings, and that the sentence is supported by legal evidence; therefore, everything necessary to support a conviction must appear upon iT It must set forth: 1 The particular circumstances constituting the offence, to show that the magistrate has conformed to the law and has not exceeded his ju- risdiction.

A mere statement of the offence in the terms of the stat- ute is insufficienT 2 The plea of the defendant, whether confession or deniaL 3 The names of the witnesses, to show their competency.

4 That the evidence was given in the presence of the accused, that it may appear he had the opportunity of cross-examination.

5 The whole evidence both for pro- secution and defence so far as appli- cable to the charge, to show that every material allegation was sus- tained by prooF 6 An adjudication of the guilt of the accused, which must be exact and precise, judgment for too little being as bad as for too much ib 1 Held, that upon the trial of an in- dictment for murder when death has ensued, the accused can not be con- victed of a simple assault and battery though he may be of manslaughte R Burns v The People, 182 2 Where two or more persons are jointly indicted for felony and demand separate trials, they have not a right to elect which defendant shall be tried firSt The People v Mclntyre, 3 The order of the trials in such case is within the control of the district attorney, subject to the direction of the court ; and as a general rule, the court should not interfere to compel the district attorney in regard to iT to direct the district attorney in such case, is not the subject of review upon exception 5 On a separate trial of a defendant jointly indicted with a codefendant for felony, such defendant can not improve his codefendant as a witness in his behalF Such codefendant is not a competent witness for the de- fendant on trial till discharged from the record by nolle protequi, acquit- tal or otherwisE ib 6 It is a matter of discretion with the court to allow the district attor- ney to try prisoners who are jointly indicted, jointly or separately, as it seems best to comport with the ad- Aancement of justice; and the court has no power to correct any error in the exercise of that discretion upon a bill of exceptionS The People v StockhAm 424 7 That discretion may be exercised by an order made on the motion of the district attorney, as well as on that the prisoner's counseL ib 8 Writs of error in cases not capital, issue of course; but they do not stay the sentence, without an express or- der to that effect from a circuit judge, or a judge of the Supreme CourT Colt v The People, 611 9 In capital cases, no writ of error can be issued unless allowed by the chancellor, or one of the justices of the Supreme Court, or a circuit judge, upon notice given to the at- torney general, or to the district at- torney of the county in which the conviction was had; and it is the duty of the officer to whom the ap- plication is made, to disallow the same, if he has no reason to doubt the legality of the conviction.

Ib 10 Where at the Oyer and Terminer the initiatory proceedings of a tria' for murder had been commenced calling the jurors as directed by la and only nineteen of the jurors ai> swered to their names, thereupon three hundred additional jurors wera summoned by the sheriff under di- rection of the court, and the court refused to delay the triaJ for two or three days, as requested by the pri- soner's counsel, to enable them to examine such list of additional ju- rors, it was held that the question to be decided on such application was a matter of discretion, and that no exception could lie to such refu- saL Colt v The PeoplE 611 II Held, also, that the summoning of so large a number of additional ju- rors was a matter of sound discre- tion, to be exercised by the court, with a view to get a sufficient num- ber who were qualified and compe- tent, from which a full jury could be obtained; and that such discretion should be exercised, upon the know- ledge which the court possessed, of the probable effects which a report of the facts, in the public papers and otherwise might have had, in bias- ing the minds of jurors, so as to disqualify them from serving ou the triaL ib The first section of the act passed 12th April,l853 (SesS Laws of 1853, page 353), prescribing and author- izing a general form for a record of conviction in case of vagrancy is not unconstitutionaL Morrit v The P&ple, 441 Whether the second section of that act which authorizes a discharge be- fore the expiration of the term, on an order jointly made by the com- mitting magistrate and one of the governors of the almshouse, is not unconstitutional and void, as infring- ing upon the pardoning power vest- ed in the governor by the constitu- tion, act 4, seC 5 Quere? ib 1 A person convicted of perjury is an incompetent witness, though he has been pardoned by the Governor and the pardon purports to re- store him to all his civil rights, the legislature having provided that such convict shall not be received us a witness till such judgment be re- versed Such is the law though the exclusive power to pardon be vested in the Governo R Houghtaling v Keldcrhouse, 241 2 Such incapacity to testify is the result of a rule of evidence and not a punishment of the offencE td 1 A motion to set aside a stay of pro- ceedings and to quash a writ of error, in a capital case, may be made by the district attorney; and the pri- soner'c counsel can not avail himself of the oojection that such motion should have been made by the attor- ney generaL Carnal v The People, 2 A justice of the Supreme Court has power to allow a writ of error, and to make an order staying proceedings, after conviction, in a capital case, ib 3 The mode of reviewing a decision of the Oyer and Terminer, as it existed previous to the adoption of the Re- vised Statutes, compared with the present practicE ib 4 What are proper considerations on an application for an allowance of a writ of error and a stay of proceed- ings, in a capital case, by Edmonds, J Sullivan v The People, 347 5 In determining whether a writ of error should be allowed and a stay of proceedings granted, to enable a prisoner to review before the Su- preme Court, an exception t tken at the Oyer and Terminer on a trial for murder, it is not necessary that the justice to whom the application ii made, should arrive at the positive conclusion that the court erred on the law; it is enough that the ex- ception is not deemed frivolous, and that it involves a gravely im- portant question, in regard to which there is a conflict of authority, and which remains unsettled by the courts of this statE The People v Hendrickson, 396 Where a coroner's inquest was held on the day following that of the alleged murder, at which the pri- soner was cJFled by the coroner as a witness, and was sworn and exam- ined by him, under oath, before the coroner's jury, having been subpoe- naed to attend for that purpose, there being some circumstances tending to show that the prisoner was then suspected of the murder, though no charge had then been made against him, and in the subsequent trial of the prisoner at the Oyer and Ter- miner, the court permitted the coun- sel for the people to give in evidence the statements made by the prisoner on such examination, it was held there was sufficient doubt of the cor- rectness of the decision to warrant the allowance of a writ of error with a stay of proceedingS ib 1 A writ of error, for the purpose of reviewing a final judgment of the court of Oyer and Terminer, is a writ of right and brings before the Supreme Court the bill of exceptions with the transcript of the record Saffbrd v The People, 474.