general verdict. United States v. Stockwell,* 4 Cr. C. C., 671; Virginia v. Zimmerman,* 1 Cr. C. C., 47; United States v. Cottom,* 1 Cr. C. C., 55.

§ 2914. Bill of exceptions.- Where it appears on the face of a bill of exceptions that it does not set forth all the evidence, such a bill cannot raise any point as to the propriety of the refusal of the court to instruct the jury that there was no evidence on which the defendant could be convicted, such refusal being excepted to at the time. Nor can the ruling of the court as to the sufficiency of the evidence on any point be drawn in question by a bill of exceptions which does not set forth all the evidence on that point, although such ruling was excepted to. Brand v. United States,* 18 Blatch., 384.

$2915. The circuit court of the United States has no authority to allow a bill of exceptions in a capital case. United States v. Gibert,* 2 Sumn., 37.

§ 2916. A bill of exceptions should not be allowed, when it was not made or tendered at the trial, nor until after a motion for a new trial and in arrest of judgment had been argued and the opinion rendered thereon, and where the verdict was satisfactory and the court feel no doubt about the law. Ibid.

§ 2917. In District of Columbia.-- According to the practice in the circuit court of the District of Columbia, a cause once tried cannot be tried again at the same term, except by consent; but this does not apply to a case where the jury are discharged on failure to agree. United States v. White,* 5 Cr. C. C., 38.

§ 2918. In order that business depending at the close of a special session may be removed to the next stated term, under the act of congress of March 2, 1793, declaring "that all business depending for trial at any special court shall, at the close thereof, be considered as of course removed to the next stated term of the circuit court," it must appear that the special session had jurisdiction of the cause, and that the session was lawfully holden. United States v. Williams.* 4 Cr. C. C., 372.

$2919. The judiciary act of 1789, having declared "that the circuit courts shall have power to hold special sessions for the trial of criminal causes at any . . . time at their discretion," and the act of February 27, 1501, having declared that the circuit court of the District of Columbia should have all the powers vested by law in the circuit courts of the United States, the circuit court of the District of Columbia has power to hold special sessions for the trial of criminal cases. It has power to hold such special sessions for the trial of offenses against what are supposed to be the municipal laws of the District of Columbia, and is not limited in this respect to offenses against those laws of the United States which operate equally throughout the United States. At such a special session, the court is not limited to the trial of those causes only which existed at the time of the order for holding it. Ib d.

§ 2920. Sending indictment to jury room. Although it is the practice to send the indict. ment with the jury when they retire to the jury room to deliberate, yet the judgment will not be arrested because this is inadvertently omitted, where there is no pretense that the defendant was injured by the omission. United States v. Angell, 11 Fed. R., 34 (S$ 733–737. ș 2021. GL motion to quish. — It is competent for the court to dispose of a motion, to quash an indictment founded on an agreed statement of facts, at the solicitation of the counsel for all the parties, without putting the accused to plead the matters alleged. United States v. Tallman, 10 Blatch., 21 (§ 1845-48).

$2922. Comparison of handwritings. Upon the trial of an indictment under section 5480, Revised Statutes, for abusing the mails, it is not error to refuse to permit the jury to inspect a copy of the letter proved to have been mailed, which copy was made by the accused in the presence of the jury. United States v. Jones, 10 Fed. R., 469 (§§ 991-993).

§ 2923. The statute of the state of New York, permitting a comparison of writings for the purpose of determining handwriting, has no effect upon criminal proceedings in the courts of the United States. Ibid.

§ 2924. Two indictments pending against accused.— Where, upon a conviction for assault and battery with intent to kill, a motion in arrest of judgment was made because ther was pending at the same time another indictmen, charging it as a simple assault and battery at common law, both indictments being found at the same time, and tried at the same time, by the same jury, who found the defendant guilty upon both, at the same time, the court refused the motion, these facts not appearing in the record of the case in which the defendant was found guilty of a battery with intent to kill. These facts will not constitute a groun « for a new trial where the attorney for the United States has entered a nolle prosequi upon the common law indictment for simple assault and battery, so that no judgment can be entered upon the verdict in that case. United States v. Herbert,* 5 Cr. C. C., 87.

2925. Acquittal of one joint defendant.- Where an indictment founded on section 5470. Revised Statutes, charges two defendants with receiving and concealing, and aiding in con

cealing, a certain article, knowing the same to have been stolen from the mail, and one of the defendants has been discharged from the indictment upon a plea of autrefois convict, the other may be tried upon it alone, and may be found guilty of the crime therein charged separately. United States v. Montgomery, 3 Saw., 544 $ 1109–17).

§ 2926. Case reopened. — In a prosecution for sending circulars relating to a lottery through the mail, the district attorney announced the testimony for the prosecution closed, and the defendant moved for an acquittal on the ground that no evidence had been introduced tending to show the existence of a lottery concerning which the papers in question were made. The district attorney then asked time to supply this proof, which was granted. Held, that it was within the discretion of the presiding judge to permit the case to be thus reopened. United States v. Noelke, 17 Blatch., 554; 1 Fed. R., 426 (§§ 975-957).

§ 2927. Change of venue. The court refused to change the venue, upon the affidavit of the defendant that a fair and impartial trial could not be had in the county, where the defendant had, about a week before, offered himself as ready and pressed for trial, and the case of another party who was charged with same offense (with whom the defendant refused to be tried) stood first on the docket and had occupied all the intermediate time. United States v. White. 5 Cr. C. C., 73.

§ 2928. Under a statute in Wyoming Territory declaring that if affidavit shall be made alleging the prejudice of the judge, a change of district shall be allowed; provided that if the objection be to the judge only, the court may, for the convenience of the parties, request the judge of another district to try the cause, in the county where pending, it is error for the court to refuse the application when properly made. Hamilton v. Territory of Wyoming,*

1 Wyom. Ty, 131.

§ 2929. Continuance.— The court refused in this case to postpone the trial until such time as the court could be held by the two judges, on the ground that difficult and important questions of law might arise, on which there might be a division of opinion between the judges, which the defendant could have certified to the supreme court under section 6 of the act of April 29, 1:0. United States v. Fullerton,* 6 Blatch., 275.

2930. A motion for a continuance, upon the affidavit of the defendant that he did not know that a certain person would be a witness in the case, and that certain absent witnesses could testify to his whereabouts at the date of the act charged, was refused by the court, these witnesses having been known to the defendant at the time of his arrest; and as he had already summoned witnesses to prove an alibi, the others could only corroborate. United States v. White,* 5 Cr. C. C., 73.

$2931. Although an accused may have compulsory process for witnesses in his favor before indictment found, yet, for the purpose of enabling him to put off the trial for the absence of material witnesses, the omission of taking out such process, before an indictment found, cannot be considered as negligence or want of due diligence, so as to deprive him of all the benefit of his affidavit proving their absence. The court, in allowing the motion in such a case, may do so upon condition of terms imposed on the defendant. United States v. Moore,* Wall. C. C., 23.

§ 2932. Where a witness was summoned and failed to attend, the court refused a continuance unless the prosecutor would make affidavit that he could not safely proceed without the witness. United States v. Frink,* 4 Day (Conn.), 471.

§ 2933. In a trial for stealing a horse, the court refused a continuance on the ground of the absence of a witness who would swear that he heard another man confess that he stole such a horse from the person whose horse was alleged to have been stolen. United States v. Toms, 1 Cr. C. C., 607.

2934. The defendant was bound over by a state magistrate, and a bill of indictment was found for misdemeanor in the circuit court of the United States. The defendant moved for a continuance on the ground that his material witness was absent in another state before he was bound over, and was still absent. The question being whether the defendant had not been negligent in not obtaining compulsory process for the witness from the magistrate who took the recognizance, the continuance was granted on the ground that the state magistrate could not issue process for the defendant's witness in another state. United States v. Little, 2 Wash., 159..

§ 2935. Upon an information for keeping a room to be used or occupied for gambling, an affidavit in support of a motion to continue the cause, in which the affiant states that he expects to prove by an absent witness that he did not occupy the room charged to be kept for gambling purposes, and that he did not permit it to be used for gambling, is insufficient. Applications of this character should specify the precise matters which the applicant expects to establish by the witness, so that the court may judge of the materiality of the proposed evidence. Chase v. The People,* 2 Colo. Ty, 509.

§ 2936. The court may vacate an order granting a continuance in a criminal case, on the same day on which it is granted, and while the defendant is still in court. Ibid.

$2937. Commitment.- A warrant of commitment must be under seal, supported by oath, and must limit the time of imprisonment. Er parte Sprout, 1 Cr. C. C., 424. See $$ 2377-79. § 2938. A warrant of commitment, which is not under seal, and which does not charge an offense under oath, is void. Ex parte Bennett, 2 Cr. C. C., 612.

§ 2939. A warrant of commitment, by justices of the peace in the District of Columbia, until the prisoner should find sufficient sureties to be bound with himself in a recognizance for his good behavior, or be otherwise discharged by due course of law, and which did not state some good cause certain, supported by oath, was held for that reason to be illegal. Ex parte Burford, 3 Cr., 443.

§ 2940. No person can be detained upon a commitment which does not show sufficient cause upon its face. Ex parte Williams, 4 Cr. C. C., 313.

§ 2941. A commitment for desertion by a justice of the peace, under the seventh section of the act of July 20, 1790, for the government and regulation of seamen in the merchant's service, should purport to be in the name of the United States, and not in the name of the state in which the proceeding is had. But in such a case the court will presume that the magistrate meant to commit in the exercise of a lawful jurisdiction, where it is apparent from the whole proceeding that the magistrate did commit the person under color and authority of the United States. Ex parte D'Olivera, 1 Gall., 474.

XXVIII. NEW TRIAL AND ARREST OF JUDGMENT.

§ 2942. In general.- The federal courts may, on cause shown, grant a new trial in any criminal case. United States v. Conner,* 3 McL., 573.

2943. The federal courts may grant new trials in capital cases on the request of the accused, though new trials were unknown at the ancient common law. United States v. Williams, 1 Cliff., 17.

2944. New trials are granted for something wrong at the former trial, as the admission of incompetent evidence, the misbehavior of the jury, or wrong rulings or instructions of the judge; also, for other reasons, as the discovery of new and important testimony. They are within the discretion of the court, and are to be granted only in furtherance of justice. United States v. Moore,* 11 Fed. R., 248.

§ 2945. A verdict of guilty, in a criminal case, ought not to be set aside when it is warranted by any fair construction of the testimony, although the court, upon the same evidence, would come to a different conclusion. United States v. Randall,* Deady, 524.

§ 2946. The court has power to grant a new trial on the application of the prisoner. United States v. Macomb,* 5 McL., 286.

§ 2947. The opinion of the court upon a motion for a new trial in a criminal case is a matter of discretion and not error. Ralph v. United States,* 9 Fed. R., 693.

2948. The court cannot grant a new trial because it differs from the jury as to the weight of the evidence. It cannot grant a new trial except in a clear case of wrong, and where manifest injustice will be done by sustaining the verdict. United States v. Potter,* 6 McL., 186.

§ 2949. The defendant, before sentence can be pronounced upon him, has a right to the judicial determination of his guilt by the court as well as by the jury. If the verdict does not satisfy the conscience of the judge, the prisoner is entitled to a new trial; and he is entitled to this judicial revision from the judge who sat upon the trial. Where both the judges composing the court die pending a motion for a new trial, and the court thereby becomes vacant, the newly commissioned judges will not award sentence on the verdic; while the defendant insists on a new trial. * United States v. Harding, 1 Wall. Jr., 127. § 2950. Twice in jeopardy.-The courts of the United States have power to grant new trials in capital cases as well as in those which are not capital. The constitutional provision, that the accused shall not be subject to be twice put in jeopardy of life or limb for the same offense, does not prohibit this power. United States v. Keen,* 1 McL., 429. Contra, United States v. Gibert,* 2 Sumn., 37.

2951. New evidence.— On a motion to set aside a verdict and for a new trial in a criminal case, the court will consider evidence not offered in the case, but which is known to the court to exist. United States v. Randall,* Deady, 524.

§ 2952. A court will not delay judgment in a criminal case merely to give the defendant time to discover, or to try to discover, new evidence on which to ask a new trial. Ibid.

§ 2953. A new trial will not be granted for newly-discovered evidence, in a case of assault and battery with intent to kill, where the affidavit states that the defendant expects to prove by that evidence that the person assaulted had a dirk or knife about his person at the time of the assault. United States v. Herbert,* 5 Cr. C. C., 87.

§ 2954. To justify the court in granting a new trial, on account of evidence discovered since the trial, it should be most manifest that injustice has been done to the prisoner, or that the new evidence would materially vary the complexion of the cause. United States v. Cor

nell, 2 Mason, 91.

§ 2955. When a motion for a new trial grounded on newly discovered evidence is considered, the court must judge, not only of the competency but of the effect of the new evidence. If with the newly discovered evidence before them, the jury ought not to come to the same conclusion, then a new trial may be granted, otherwise they are bound to refuse the application. Leschi v. Washington Territory,* 1 Wash. T'y, 13.

§ 2956. A new trial should not be granted for new evidence, where such evidence consists in the testimony of persons charged as joint offenders and acquitted, when they were incompetent witnesses at the trial. United States v. Gibert,* 2 Sumn., 37.

§ 2957. In a capital case the court ought not to grant a new trial for newly discovered evidence unless the fullest credit is given to the new evidence, and the court is of opinion that it outweighs in strength and clearness and force the evidence on the other side. Ibid.

§ 2958. To be entitled to a new trial on the ground of newly discovered evidence, the party must satisfy the court that the evidence has come to his knowledge since the trial — that he has discovered it. It matters not that the defendant knew the facts before the trial but did not communicate them to his counsel. It must also be satisfactorily shown that the newly discovered evidence is so material that it would probably produce a different verdict if a new trial were granted. United States v. Smith,* 1 Saw., 277.

§ 2959. Evidence insufficient — Objections.— A motion for a new trial on the ground that the evidence offered did not sustain a particular portion of the charge of the indictment will not be granted when it does not appear that the objection was definitely enough made on the trial to attract notice. United States v. Jenther,* 13 Blatch., 335.

§ 2960. A point regarding a defect in the evidence, not made at the trial, is not available as a ground for a new trial. Neither is it ground for arresting the judgment. United States v. Byrne, 19 Blatch., 259.

§ 2951. Where, upon the trial of an indictment for assault and battery with intent to kill, there was evidence of the intent to kill, sufficient to be left to the jury, a new trial will not be granted on the ground that there was no such evidence. United States v. Herbert,* 5 Cr. C. C., 87.

§ 2962. Motion too late.- After a conviction, and a motion in arrest of judgment which went to the supreme court on a certificate of division, and after a decision by that court, it was held to be too late for the defendant to move for a new trial. United States v. Simmons,* 14 Blatch., 473.

§ 2963. Erroneous rulings.— A new trial may be granted in a criminal case on application of the defendant, especially when his conviction has been caused by erroneous rulings of the court. United States v. Macomb,*5 McL., 286.

§ 2964. An erroneous charge defining reasonable doubt, in a criminal case, is not ground for a new trial when the facts admit of no doubt whatever of the prisoner's guilt, and the jury could not have been misled by the instruction. Mackey v. The People,* 2 Colo. Ty, 13.

§ 2965. A new trial must be granted for the improper rejection of testimony, as well as its improper admission, without reference to the opinion of the court as to its probable effect on the verdict. And the court will grant a new trial, although satisfied that the defense, sought to be set up by the evidence rejected, is a simulated one. United States v. De Quilfeldt, 5 Fed. R., 276 (9-13).

§ 2966. Not granted when verdict right. A motion for a new trial is addressed to the discretion of the court, and will never be granted when the court sees that the verdict is clearly and unmistakably right. United States v. Hartwell, 3 Cliff., 238.

§ 2967. A ruling in favor of the accused will not be considered on a motion for a new izial. United States v. Williams, 1 Cliff., 18.

§ 2968. On admission of evidence.-On an indictment for loaning public money it is no ground for a new trial of the defendants that evidence of the confession of the principal is admitted before proof that the defendants were his confederates. United States v. Hartwell, 3 Cliff., 228.

§ 2969. Bad counts.- A verdict in a criminal case will not be set aside, though some of the counts in the indictment are bad, if some of them are good. United States v. Plumer, 3 Cliff., 67.

§ 2970. Refusal of separate trial. A new trial will not be granted because the prisoners, charged with a joint piracy on the high seas, were not allowed a separate trial on motion made for this purpose. The granting of such a motion is a matter of discretion, and should not be allowed merely to permit the prisoners to make use of the testimony of each other in their defense. United States v. Gibert,* 2 Sumn., 37.

2971. To secure evidence of one acquitted.- Where two were jointly indicted for a robbery, and one was acquitted, but the other convicted, it was held that the one convicted might have a new trial on the ground that his comrade was by acquittal made a competent witness, and the new trial was granted without disturbing the verdict as to the one acquitted. United States v. Campbell, 4 Cr. C. C., 658.

§ 2972. Division of opinion.- Though a division of opinion cannot be certified on a motion for a new trial, yet where there is a difference of opinion on such a motion, such a direction will be given to the case as will enable the defendant to obtain a certificate of division under the statute. A new trial will be granted, and the cause will be again submitted to the jury in the presence of the two judges, and the question or questions will be regularly certified. United States v. Fullerton,* 6 Blatch., 275.

§2973. Defective verdict.- Where, in a case of misdemeanor, the jury have returned a verdict so imperfect that no judgment can be given upon it, and such verdict has been received and the jury discharged, the court may issue a venire de novo. United States v. Watkins,* 3 Cr. C. C., 441.

§ 2974. Surprise.- Courts interfere with verdicts on the ground of surprise in testimony, with great reluctance. If the surprise was owing to the least want of diligence, the applicant will be without excuse, and his motion denied. One moving for a new trial on account of surprise must show that the contrary would be proved on another trial. United States v. Smith,* 1 Saw., 277.

§ 2975. Absence of presiding judge.- Where, before the cominencement of the trial, the defendant and his counsel were expressly told by the court that if they desired a continuance on account of the absence of the presiding judge, they could have it, and they answered that they desired the trial to proceed, it was held that the absence of the presiding judge could not afford a ground for a new trial. United States v. Martin,* 2 McL., 253,

§ 2976. Jury allowed to read newspapers. It is no ground for a new trial in a criminal case that the jury, being kept together for many days, were allowed by the officer in charge of them to read the newspapers, from which the officer had previously removed everything relating to the case, and the jurors make affl lavit that they saw nothing in the papers relative to the case. United States v. Gibert,* 2 Sumin., 37.

§ 2977. Use of ardent spirits by jury. It is not ground for a new trial, that, during a long and tedious criminal trial certain of the jurors, on stating that they were unwell, were allowed, on the consent of the counsel on both sides, to use such ardent spirits as were necessary for their health, and there is no evidence that this indulgence was abused or operated injuriously to the defendant. Ibid.

§ 2978. Affidavits of jurors.- On motion for a new trial in a criminal case, the affidavits of the jurors ought not to be received to impeach their own verdict. (Per TANEY, C. J., HALYBURTON, J., dissenting.) United States v. Reid,* 3 Hughes, 527.

§ 2979. Papers taken to jury room.- Where the jury took out with them the indictment, containing three counts, two of which the court had upon demurrer adjudged insufficient, the court held that although the jury might have supposed they were trying an issue upon all the counts, and may have given their verdict because they thought one of the bad counts was supported, they would not graut a new trial, being satisfied that the evidence was suf ficient to support the good count. United States v. Royall,* 3 Cr. C. C., 620.

§ 2989. Misconduct of jary. As a general rule it is not necessary, in order to justify the court in setting aside a verdict for the misconduct of a juror, to show affirmatively that such conduct influenced the jury or affected the verdict. The misconduct of a juror, if it occurs without the knowledge or participation of the party litigant, taints the verdict; that is, if it was of such a character that it might have had an undue influence. United States v. Salentine,* 8 Biss., 404.

§ 2981. A new trial will not be granted for the misconduct of a jury which was partici pated in by the defendant. ibid.

§2952. A motion for a new trial was refused which was based upon the ground that, after the case had been submitted to the jury and they had retired to their room, they were furnished, at their own request, by the officer in charge of them, with several directories of the city of New York, nothing having appeared to show that this irregularity operated in any way to the disadvantage of the prisoner, and this irregularity ha ing been made known to the court before the verdict was brought in, and the court having recalled the jury and directed them to retire to their room and banish from their minds any information they may