same. The application may be made in the mode and manner, and under such regulations as that court may prescribe; and the bill, when proven, must be certified by the chief justice as correct, and filed with the clerk of the court in which the action was tried, and when so filed, it has the same force and effect as if settled by the judge who tried the cause. If the judge who presided at the trial ceases to hold office before the bill is tendered or settled, he may nevertheless settle such bill, or the party may, as provided in this section, apply to the supreme court to prove the same. En. February 14, 1872. 1873-4, 448. Am'd. 56, 119; 73, 2; 78, 347; 108; 32; 136, 21; 136, 669; A bill of § 1175. What bill of exceptions is to contain. exceptions must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken; and the judge must upon the settlement of the bill, whether agreed to by the parties or not, strike out all other matters contained therein. En. February 14, 1872. Cal. Rep. Cit. 51, 321; 52, 212; 76, 285; 76, 351; 80, 157; 80, 488; 121, 281. Crim. Prac. Act, sec. 436. 1851, 290. En. 1851, 212. Cal.Rep.Cit. 28, 218. Crim. Prac. Act, sec. 437. 1851, 290. En. 1851, 212. Cal.Rep.Cit. 28, 218. En. April 20, 1850. Rep. En. April 20, 1850. Rep. 1176. Written charges need not be excepted to. When written charges have been presented, given, or refused, or, when the charges have been taken down by the reporter, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges or the report, with the indorsements showing the action of the court, form part of the record, and any er ror in the decision of the court thereon may be taken advantage of on appeal, in like manner as if presented in a bill of exceptions. En. February 14, 1872. Cal. Rep. Cit. 77, 180; 77, 181; 115, 161; 118, 329; 127, 541. Crim. Prac. Act, sec. 438. 1851, 290. En. 1851, 212. 84, 581; 106, 36; 111, 259; En. April 20, 1850. Cal.Rep.Cit. 28, 218; 37, 276; 40, 287; 44, 598. Rep. By section 1207, subdivision 3, post, all charges given or refused, and the indorsements thereon, constitute a part of the judgment roll or record of the action. § 1179. NEW TRIALS. In what cases it may be granted. New trial defined. A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. En. February 14, 1872. Cal.Rep. Cit. 72, 15. Crim. Prac. Act, sec. 439. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal.Rep.Cit. 4, 377; 4, 380; 46, 48. § 1180. Its effect. The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict cannot be used or referred to either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the indictment. En. February 14, 1872. Am'd. 1873-4, 449. Cal.Rep. Cit. 99, 231; 99, 232; 138, 485; 138, 486. · § 1181. In what cases it may be granted. When a verdict has been rendered against the defendant, the court may, upon his application, grant a new trial, in the following cases only: 1. When the trial has been had in his absence, if the indictment is for a felony. 2. When the jury has received any evidence out of court other than that resulting from a view of the premises. 3. When the jury has separated without leave of the court, after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented. 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors. 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial. 6. When the verdict is contrary to law or evidence. 7. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newlydiscovered evidence, the defendant must produce at the hearing in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all the circumstances of the case, may seem reasonable. En. February 14, 1872. Crim. Prac. Act, sec. 440. En. April 20, 1850. 1851, 290. En. 1851, 212. Am'd. 1863, 161. Cal. Rep. Cit. 18, 699; 21, 339; 23, 100; 43, 56. Rep. § 1182. Application for, when made. The application for a new trial must be made before judgment. En. February 14, 1872. Cal.Rep.Cit. 80, 488; 98, 355; 135, 371. Crim. Prac. Act, sec. 441. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. CHAPTER VII. ARREST OF JUDGMENT. § 1185. Motion in arrest of judgment. § 1186. § 1187. § 1188. Court may arrest judgment without motion. Defendant, when to be held or discharged. § 1185. Motion in arrest of judgment. A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on a plea or verdict of guilty, or on a verdict against the defendant, on a plea of a former conviction or acquittal. It may be founded on any of the defects in the indictment or information mentioned in section one thousand and four, unless the objection has been waived by a failure to demur, and must be made before or at the time the defendant is called for judgment. En. February 14, 1872. Am'd. 1880, 25. Cal. Rep.Cit. 48, 252; 49, 390; 56, 535; 58, 225; 71, 389; 71, 392; 77, 33; 82, 621; 90, 199; 98, 128; 103, 428; 103, 677; 122, 143; 127, 549; 131, 250. Crim. Prac. Act, sec. 442. En. April 20, 1850. 1851, 290. En. 1851, 212. Rep. Cal.Rep.Cit. 27, 401; 27, 402; 29, 262; 37, 279. Crim. Prac. Act, sec. 444. En. April 20, 1850. 1851, 290. En. 1851, 212. Rep. Indictment, sufficiency of: See ante, sec. 960. Grounds of demurrer to indictment or information: See ante, sec. 1004. 1 § 1186. Court may arrest judgment without motion. The court may also, on its own view of any of these defects, arrest the judgment without motion. En. February 14, 1872. Crim. Prac. Act, sec. 443. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal.Rep.Cit. 31, 626; 44, 34. § 1187. Effect of arresting judgment. The effect of allowing a motion in arrest of judgment is to place the defendant in the same situation in which he was before the indictment was found or information filed. En. February 14, 1872. Am'd. 1880, 25. Cal.Rep. Cit. 73, 406; 74, 98. Crim. Prac. Act, sec. 445. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal. Rep. Cit. 44, 34. If, § 1188. Defendant, when to be held or discharged. from the evidence on the trial, there is reason to believe the defendant guilty, and a new indictment or information can be framed upon which he may be convicted, the court may order him to be recommitted to the officer of the proper county, or admitted to bail anew, to answer the new indictment or information. If the evidence shows him guilty of another offense, he must be committed or held thereon, and in neither case shall the verdict be a bar to another prosecution. But if no evidence appears sufficient to charge him with any offense, he must, if in custody, be discharged; or if admitted to bail, his bail is exonerated; or if money has been deposited instead of bail, it must be refunded to the defendant; and the ar rest of judgment shall operate as an acquittal of the charge upon which the indictment or information was founded. En. February 14, 1872. Am'd. 1880, 25. Cal.Rep.Cit. 64, 263; 74, 98; 109, 296; 132; 16. Crim. Prac. Act, sec. 446. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal. Rep. Cit. 44, 34. Discharge of defendant: See post, sec. 1485. |