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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.

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.

§ 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 or 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. v. 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 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 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.

TITLE IX.

Of the Judgment and Execution.

CHAPTER 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 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.

SEC. 480. Arraignment of defendant for judgment.

481. What cause may be shown against the judgment.
482. If no sufficient cause shown, judgment to be pro.
nounced.

483. Court may summarily inquire into circumstances in
aggravation or mitigation of punishment.

484. Judgment to pay fine.

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 acquital, if the judgment be not arrested, or a new trial granted, the court must appoint a time for pronouncing judgment.

§ 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.

§ 473. Appearance. 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. Defendant in custody, to be brought before the court.-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. When 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 state. A. B. having been

[SEAL.] on the

day of 18 duly convicted in the court of sessions 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

18

of
"By order of the court.

day

"E. F., clerk."

§ 478. Service of the bench warrant.—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 county 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 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.

In capital cases this must appear upon the record. Graham v. Peo., 63 Barb., 468; 6 Lans., 149; see Messner v Peo., 45 N. Y., 1; Hilderbrand v. Peo.,1 Hun, 19; aff'd 56 N. Y., 394.

§ 481. What 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.

§ 482. Judgment.- If no sufficient cause be alleged, or appear to the court, why judgment should not be pronounced, it must thereupon be rendered.

On a plea of guilty, court may give a general judgment applicable to any count. Polinsky v. Peo., 11 Hun, 390; 73 N. Y., 65. Court may suspend judgment. Peo. v. Graves, 2 N. Y. Cr., 123; Peo. v. Morisette, 20 How. Pr., 118.

§ 483. Inquiry into circumstances touching 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, upon the suggestion of either party, that there are circumstances, which may be properly taken into view, either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily at a specified time, and upon such notice to the adverse party as it may direct.

§ 484. Judgment to pay fine.- A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment; which cannot exceed one day for every one dollar of the fine.

§ 485. The judgment roll — When judgment upon a conviction is rendered, the clerk must enter the same

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