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the fact with their verdict. The court must, thereupon, if the defendant be in custody, and they deem his discharge dangerous to the public peace or safety, order him to be committed to the state lunatic asylum, until he becomes sane.
II. New trials.
BILL OF EXCEPTIONS.
SEC. 455. In what cases.
456. By whom settled, and how flled.
within the time prescribed.
1. In disallowing a challenge to the panel of the jury ;
2. In admitting or rejecting testimony on the trial of a challenge for actual bias to any juror who participated in the verdict, or in allowing or disallowing such challenge;
3. In admitting or rejecting witnesses or testimony, or in deciding any question of law, not a matter of discretion, or in charging or instructing the jury upon the law, on the trial of the issue.
Peo. v. Petmecky, 2 N. Y. Cr., 450. § 456. How settled and filed.-A bill containing the exceptions must be settled and signed by the presiding judge, and filed with the clerk.
$ 457. When to be settled.—The bill of exceptions must be settled at the trial unless the court otherwise direct. If no such direction be given, the point of the exception must be particularly stated in writing, and delivered to the court, and must immediately be corrected or added to, until it is made conformable to the truth.
§ 458. When and how settled, after the trial.-If the bill of exceptions be not settled at the trial it must be prepared and served, within five days thereafter, on the district attorney, who may, within five days, serve on the defendant or his counsel, amendments thereto. The defendant may then, within five days, serve the district attorney with a notice to appear before the presiding judge of the court, at a specified time, wbether in or out of court, not less than five nor more than ten days thereafter, to have the bill of exceptions settled.
§ 459. Id. At the time appointed, the judge must settle and sign the bill of exceptions.
§ 460. Enlarging the time therefor.—The time for preparing the bill of exceptions or the amendments thereto, or for settling the same, may be enlarged by consent of the parties, or by the presiding judge, or by a judge of the supreme court, but by no other officer.
§ 461. Failure to serve exceptions or amendments.If the bill of exceptions be not served within the time prescribed in section 458, or within the enlarged time therefor, as prescribed in the last section, the exceptions are deemed abandoned. If it be served, and the parties omit, within the time limited by section 458, the one to prepare amendments, and the other to give notice of appearance before the judge, they are respectively deemed, the one to have agreed to the bill of exceptions, and the other to the amendments.
SEC. 462. New trial.
463. When granted.
$ 462. New trial. - A new trial is a re-examination of the issue, in the same court, before another jury, after a verdict has been given.
§ 463. When granted.- A new trial can be granted by the court in which the former trial was had, only in the cases provided in section 465.
§ 464. Effect of granting new trial. — 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.
§ 465. When granted. The court in which a trial has been had upon an issue of fact has power to grant a new trial, when a verdict has been rendered against the defendant, by which his substantial rights have been prejudiced, upon his application, in the following cases:
1. When the trial has been had in his absence, if the indictment be for a felony ;
2. When the jury has received any evidence out of court, other than that resulting from a view, as provided in section 411;
3. When the jury have separated without leave of the court, after retiring to deliberate upon their verdict, or have 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 refused to instruct them as prescribed in section 420; and the defendant has, at the trial, excepted to such misdirection or refusal ;
6. When the verdict is contrary to law or clearly against evidence;
7. When it is made to appear, by affidavit, that upon another trial, the defendant can produce evidence such as if before received would probably have changed the verdict; if such evidence has been discovered since the trial, is not cumulative; and the failure to produce it on the, trial was not owing to want of diligence.
Peo. v. Lane, 1 N. Y. C. L., 548; Peo. v. Stokes, 2 N. Y. Cr., 382 ; Dowling v. Peo., 84 N. Y., 478.
§ 466. Application, when to be made.-The application for a new trial must be made before judgment except in case of a sentence of death when the application may be made at any time before execution and in case the court before which the trial was had is not in session so that the application can be made and determined before the execution then the application may be made to any justice of the supreme court or special term thereof, within the judicial department where the conviction was had.
Peo. v. Leighton, 1 N. Y. Cr., 468. CHAPTER III.
ARREST OF JUDGMENT.
470. Defendant when to be held or discharged. § 467. 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 upon the plea of a former conviction acquittal. It may be founded on any of the defects in the indictment, mentioned in section 331.
Motion in arrest is not confined to indictment, but may include whole record. Peo. v. Bruno, 6 Park., 657. It cannot bring up a variance between proof and indictment. Peo. v. Onondaga Gen. Sess., 1 Wend., 296. Nor mistakes of the court on trial, or of the jury in giving verdict. Peo. 0. Thompson, 41 N. Y., 1; Peo. v. Allen, 43 ib.,
28. Can only be made for defects on the record. Jacobowsky v. Peo., 6 Hun, 524 ; 64 N. Y., 659 ; 2 N. Y. Cr., 15 ; 20 W. Dig., 294.
§ 468. Court may arrest judgment without motionThe 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.
Peo. v. Dengencour, 2 N. Y. Cr., 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 judgment operates as an acquittal of the charge upon which the indictment was fnund ; 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 re-committed 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 re-committed or held to answer, is the former verdict a bar to a new indictment.
Cox v. Peo., 80 N. Y., 500 ; Dowling v. Peo., 84 N. Y., 478.
Of the Judginent and Execution.
II The execution.
SEC. 471, 472. Time for pronouncing judgment, to be appointed
by the court. 473. In felony, defendant must be present. In misdemean.
or, 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.