CHAPTER III. Arrest of Judgment. Sec. 467. Motion in arrest of judgment, defined and upon what defects founded. 468. Court may arrest judgment without motion. 469. Motion, when and how made. 470. Defendant when to be held or discharged. 470a. Suspension of judgment. 470b. Effect thereof. 467. Motion in arrest of judgment, defined and upon what defects founded. 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 upon the plea of a former conviction or acquittal. It may be founded on any of the defects in the indictment, mentioned in section 331.* Am'd L. 1882, ch. 360. Objection to indictment for forgery. People v. D'Argencour, 32 Hun, 178, affd., 95 N. Y. 624. Grounds of motion. People v. Menken, 36 N. Y. 90; 3 N. Y. Cr. Rep. 233; People v. Osterhout, 3 N. Y. Cr. Rep. 443; 34 Hun, 260; People v. Knatt, 156 N. Y. 302; People v. Buddensieck, 103 N. Y. 487; 5 N. Y. Cr. Rep. 69; People v. Kelly, 31 Hun, 225, affd., 94 N. Y. 526; 2 N. Y. Cr. Rep. 15; People v. Meakim, 133 N. Y. 214; People ex rel. Benton v. Sessions, 46 N. Y. St. Rep. 255; 19 N. Y. Supp. 508; People v. Buchanan, 25 N. Y. Supp. 481; People v. Van Santvoord, 9 Cowen, 655; People v. Davis, 56 N. Y. 95; People v. Sessions, 20 John. 309; People v. Bruno, 6 Parker, 657; People v. Thompson, 41 N. Y. 1; People v. Allen, 43 N. Y. 28; People v. Kelly, 2 N. Y. Cr. Rep. 15; Jacobowsky v. People, 6 Hun, 524; People v. Sullivan, 115 N. Y. 185; Kane v. People, 3 Wend. 363; People v. Austin, 63 App. Div. 382; People v. Lewis 111 App. Div. 558. Withdrawing plea. People v. Joyce, 4 N. Y. Cr. Rep. 341. New trial. People v. Beckwith, 42 N. Y. 366; 5 N. Y. Cr. Rep. 232. See People v. Tower, 135 N. Y. 457; People v. Mack, 35 App. Div. 114. § 468. Court may arrest judgment without motion. The court may also, on its own view of any of these defects, arrest the judgment without motion. § 469. Motion, when and how made. The motion must be made, before or at the time when the defendant is called for judgment. If made before, it must be on notice to the district attorney, or in his presence. Objection to indictment for forgery. People v. D'Argencour, 32 Hun, 178, affd., 95 N. Y. 624; 2 N. Y. Cr. Rep. 267. § 470. Defendant when to be held or discharged. When judgment is arrested, and it appears that there is not evidence sufficient to convict the defendant of any crime, he must, if in custody, be discharged; or, if under bail, his bail must be exonerated; or, if money has been deposited instead of bail, it must be refunded; and in such case the arrest of judgSo in original. This evidently should read, § 323. ment operates as an acquittal of the charge upon which the indictment was found; but, if there is reasonable ground to believe the defendant guilty, and a new indictment can be framed upon which he may be convicted, the court may order him to be recommitted or admitted to bail anew to answer the new indictment; if there is reasonable ground to believe him guilty of another crime, he must be committed or held to answer therefor; and in no case, when recommitted or held to answer, is the former verdict a bar to a new indictment. New trial. People v. Dowling, 84 N. Y. 478. § 470a. Suspension of judgment. If the judgment be suspended, after a plea or verdict of guilty or after a verdict against the defendant upon a plea of former conviction or acquittal, the court may pronounce judgment at any time thereafter within the longest period for which the defendant might have been sentenced; but not after the expiration of such period, unless the defendant shall have been convicted of another crime committed during such period. Added by L. 1893, ch. 651. People v. Markham, 114 App. Div. 387; People ex rel. Sullivan v. Flynn, 55 Misc. 639. § 470b. Effect thereof. If judgment be not pronounced as in the last section provided, nevertheless: 1. For the purpose of indictment and conviction of a second offense, the plea or verdict and suspension of judgment shall be regarded as a conviction, and shall be pleaded according to the fact. 2. The said plea or verdict and suspension of judgment may be proved in like manner as a conviction for the purpose of effecting the weight of the defendant's testimony in any action or proceeding, civil or criminal. Added by L. 1893, ch. 651. L. 1893, ch. 651, repealed "all acts and parts of acts inconsistent with the provisions" of the last two sections," in so far as inconsistent therewith.' People v. Markham, 114 App. Div. 387. So in original. 147 TITLE IX. Of the Judgment and Execution. Chap. I. The judgment. II. The execution. CHAPTER I. The Judgment. Sec. 471, 472. Time for pronouncing judgment, to be appointed by the court. 473. In felony, defendant must be present. In misdemeanor. judgment may be pronounced in his absence. 474. When defendant is in custody, how brought before the court for judgment. 475. How brought before the court, when he is on bail. 476. Bench warrant to issue. 477. Form of bench warrant. 478, 479. Service of the bench warrant. 480. Arraignment of defendant for judgment. 481. What cause may be shown against the judgment. 482. If no sufficient cause shown, judgment to be pronounced. 483. Court may summarily inquire into circumstances in aggravation or mitigation of punishment. 484. Power to remit fines, how exercised by courts. 485. The judgment-roll. § 471. Time for pronouncing judgment, to be appointed by the court. After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment be not arrested, or a new trial granted, the court must appoint a time for pronouncing judgment. Conviction. People ex rel. Evans v. McEwan, 67 How. Pr. 105; 2 N. Y. Cr. Rep. 307. See People v. Trimble, 60 Hun, 364, affd., 131 N. Y. 118; People ex rel. Benton v. Sessions, 46 N. Y. St. Rep. 255; 19 N. Y. Supp. 508, affd., 66 Hun, 550; People v. Morrissette, 20 How. Pr. Rep. 118. § 472. Id. The time appointed must be at least two days after the verdict, if the court intend to remain in session so long, or if not, as remote a time as can reasonably be allowed; but any delay may be waived by the defendant. Am'd L. 1882, ch. 360. Waiver of delay. People v. Everhardt, 104 N. Y. 591, affg. 5 N. Y. Cr. Rep. 91. See People v. Trimble, 60 Hun, 364, affd., 131 N. Y. 118; People ex rel. Benton v. Sessions, 46 N. Y. St. Rep. 255; 19 N. Y. Supp. 508; People v. Spencer, 179 N. Y. 408. § 473. In felony, defendant must be present. In misdemeanor, judgment may be pronounced in his absence. For the purpose of judgment, if the conviction be for a felony, the defendant must be personally present; if it be for a misdemeanor, judgment may be pronounced in his absence. § 474. When defendant is in custody, how brought before the court for judgment. When the defendant is in custody, the court may direct the officer in whose custody he is, to bring him before it for judgment; and the officer must do so accordingly. § 475. How brought before the court, when he is on bail. If the defendant have been discharged on bail, or have deposited money instead thereof, and do not appear for judgment, when his personal attendance is necessary, the court, in addition to the forfeiture of the undertaking of bail or of the money deposited, may direct the clerk to issue a bench warrant for his arrest. § 476. Bench warrant to issue. The clerk, on the application of the district attorney, may accordingly, at any time after the order, whether the court be sitting or not, issue a bench warrant into one or more counties. 477. Form of bench warrant. The bench warrant must be substantially in the following form: "County of Albany [or as the case may be]. "In the name of the people of the state of New York To any sheriff, constable, marshal or policeman in this [SEAL.] state. A. B., having been on the day of 18 duly convicted in the county court of the county of Albany [or as the case may be] of the crime of [designating it generally]. "You are, therefore, commanded, forthwith, to arrest the above-named A. B., and bring him before that court for judgment; or if the court have adjourned for the term, you are to deliver him into the custody of the sheriff of the county of Albany [or as the case may be, or in the city and county of New York to the keeper of the city prison of the city of New York']. City of Albany [or as the case may be], the "By order of the court. Am'd L. 1895, ch. 880. § 478. Service of the bench warrant. day "E. F., Clerk." The bench warrant may be served in any county, in the same manner as a warrant of arrest: except that when served in another county it need not be indorsed by a magistrate of that county. § 479. Id. Whether the bench warrant be served in the count in which it was issued, or in another county, the officer must arrest the defendant and bring him before the court, or commit him to the officer mentioned in the warrant, according to the command thereof. § 480. Arraignment of defendant for judgment. When the defendant appears for judgment, he must be asked by the clerk whether he have any legal cause to show, why judgment should not be pronounced against him. People v. Druse, 5 N. Y. Cr. Rep. 10; People v. McClure, 148 N. Y. 95. Failure to ask. Graham v. People, 6 Lansing, 149; 63 Barb. 468; Hildebrand v. People, 1 Hun, 19; Safford v. People, 1 Parker, 474; Messner v. People, 45 N. Y. 1. § 481. What cause may be shown against the judgment. He may show for cause, against the judgment, 1. That he is insane; and if, in the opinion of the court, there be reasonable ground for believing him to be insane, the question of his insanity must be tried as provided by this Code. If, upon the trial of that question, it is found that he is sane, judgment must be pronounced; but if found insane, he must be committed to the state lunatic asylum until he becomes sane; and when notice is given of that fact, he must be brought before the court for judgment; 2. That he has good cause to offer, either in arrest of judgment, or for a new trial; in which case the court may, in its discretion, order the judgment to be deferred, and proceed to decide upon the motion in arrest of judgment or for a new trial. Technical defect. People v. Osterhout, 3 N. Y. Cr. Rep. 443; 34 Hun. 260; Subd. 1. People v. McElvaine, 126 N. Y. 596; 8 N. Y. Cr. Rep. 156; People ex rel. Benton v. Sessions, 46 N. Y. St. Rep. 255; 19 N. Y. Supp. 508. § 482. If no sufficient cause shown, judgment to be pronounced. If no sufficient cause be alleged, or appear to the court, why judgment should not be pronounced, it must thereupon be rendered. Effect. People ex rel. Benton v. Sessions, 66 Hun, 550. Form. Polinsky v. People, 73 N. Y. 65. Length. People v. Bauer, 37 N. Y, 407. Suspending sentence. People v. Graves, 2 N. Y. Cr. Rep. 123; People v. Morrisette, 20 How. Pr. Rep. 118; People v. Harrington, 15 Abb. N. C. 161. 483. Court may summarily inquire into circumstances in aggravation or mitigation of punishment. After a plea or verdict of guilty, in a case where a discretion is conferred upon the court as to the extent of the punishment, the court may, in its discretion, hear the same summarily at a specified time, and upon such notice to the adverse party as it may direct. At such specified times, if it shall appear by the record and the circumstances of any person convicted of crime, that there are circumstances in mitigation of the punishment, the court shall have power, in its discretion, to place the defendant on probation in the manner following: 1. The court upon suspending sentence, may place such person |