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1180. Effect of granting new trial.

SEC. 1180. 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. [Amendment, approved March 30, 1874; Amendments 1873-4, 449; took effect July 1, 1874.]

Jeopardy: Sec. 687, note; People v. Apgar, ple v. Barric, 49 Id. 342; People v. Olwell, 28 35 Cal. 389; People v. Gilmore, 4 Id. 376; Peo- Id. 456.

1181. In what cases it may be granted.

SEC. 1181. 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 newly discovered 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. Subd. 1. Trial in absence of defendant. Where the jury during the trial were permitted to view the scene of the alleged crime, in custody of the sheriff, without the presence of defendant, it was held not to be error; that this view is not a part of the trial within the meaning of the statute requiring the presence of defendant during the trial: People v. Bonney, 19 Cal. 426; but see, contra, Benton v. State, 30 Ark. 328, 348; State v. Bertin, 24 La. Ann. 46; Eastwood v. People, 3 Park. Cr. 25; see also note to sec. 1119, ante. On appeal, if the record does not affirmatively show that defendant was absent during a portion of the trial, it will be presumed that he was present: People v. Stuart, 4 Cal. 218; see People v. Trim, 37 Id. 274.

Subd. 3. Separation of jury.-Where the jury, after retiring to deliberate upon their verdict, separate without permission of the court, the irregularity is sufficient, ordinarily, to set aside the verdict of guilty rendered by them: People v. Brannigan, 21 Cal. 337; People v. Backus, 5 Id. 275. But the mere fact that the jury separate without permission of the court does not necessarily require that a new trial should be granted. A presumption is thereby afforded that the jury have been subjected to

improper influences; but this presumption may be removed by an affirmative showing that no injury resulted to defendant from the sepa ration: People v. Symonds, 22 Id. 348. The retirement of several jurors for a few moments, with permission of the sheriff, and for a necessary purpose, is not a sufficient ground for granting a new trial, no misconduct being shown: People v. Moore, 41 Id. 238; People v. Bonneg, 19 Id. 426.

Subds. 3, 4. Misconduct of jury." It is the settled rule that to warrant the setting aside of a verdict and granting a new trial upon the ground of irregularities and misconduct of jury, it must be either shown as a fact or presumed as a conclusion of law that injury resulted from such misconduct:" People v. Lyle, 4 West Coast Rep. 349, 351. Where a juror during the progress of the trial manifested a tendency to talk about the case, such action is not sufficient ground for granting a new trial, where it appears conclusively that defendant was not prejudiced thereby: People v. Dennis, 39 Cal. 625. But see People v. Turner, Id. 370. A new trial will not be granted because some of the jury may have conversed with third persons while deliberating on their verdict, if it be

shown that such conversations were innocent: People v. Symonds, 22 Id. 348; see also People v. Boggs, 20 Id. 432. The presumption is that jurors perform their duty in accordance with the oath they have taken: People v. Williams, 24 Id. 31; People v. Lyle, 4 West Coast Rep. 349. Affidavits on the question of misconduct of the jury being conflicting, the ruling of the court below will not be disturbed on appeal: People v. Dye, 62 Cal. 523. Insufficient evidence of misconduct of juror: See People v. Anthony, 56 Id. 397; that it is not misconduct warranting a new trial for one of the jurors to visit during the trial the scene of the alleged burglary: People v. Hope, 62 Id. 241. Entertaining of juror by counsel during progress of trial will not warrant a new trial unless the defendant was prejudiced: See People v. Lyle, 4 West Coast Rep. 349.

Intoxicating liquors given to jurors during trial: See People v. Gray, 61 Cal. 164.

Affidavit to impeach verdict.-Ordinarily the affidavits of jurors will not be received to impeach their verdict, but it seems the rule is otherwise when the verdict is arrived at by a resort to the determination of chance: People v. Hughes, 29 Cal. 257; People v. Sprague, 53 Id. 491; see also People v. Wyman, 15 Id. 70; People v. Lee, 17 Id. 76. In the note to Crawford v. State, 24 Am. Dec. 475, the question whether the verdict of a jury in a criminal case may be impeached by the affidavits of the jurors is considered at length. But that such affidavits are not admissible in this state, see People v. Gray, 61 Cal. 164, 183.

Affidavit in support of verdict.-That a juror's affidavit may be used in support of a verdict which has been assailed for misconduct, see People v. Hunt, 59 Cal. 430.

Subd. 5. Erroneous rulings: Sec. 1127, note. Any substantial error of the court on a question or matter arising during the course of the trial is a proper ground for granting motion for new trial: People v. Turner, 39 Cal.

370.

Subd. 6. Verdict contrary to evidence. If the judge before whom the case was tried is satisfied that the conviction was obtained on the testimony of witnesses unworthy of belief, it is his duty, on application of defendant, to grant a new trial: People v. Baker, 39 Cal. 686. If the verdict is clearly not sustained by the evidence, a new trial will be granted: People v. Lewis, 36 Id. 531. But the appellate court will not grant a new trial on the ground that the verdict is contrary to the evidence, if the testimony is conflicting, and there is any evidence to support the verdict: People v. Brown, 27 Id. 500; People v. Strange, 61 Id. 496; People v. Darr, Id. 554; nor will the supreme court assume that a witness was not worthy of belief in order to grant a new trial: People v. Anthony, 56 Id. 397. It is said that in order to authorize the appellate court to set aside a verdict on the ground that it is against the evidence, there must be such overwhelming evidence against the verdict as to justify the presumption that it was rendered under the influ

1182. Application for, when made.

ence of passion, or prejudice, or bias of some kind: People v. Vince, 21 Id. 400; see also People v. Martin, 2 Id. 484; People v. Ah Loy, 10 Íd. 301.

Contrary to law.-A verdict is not contrary to law which finds the lowest offense within the charge in the indictment: People v. Jamarillo, 57 Cal. 111.

Subd. 7. Newly discovered evidence. A motion for a new trial on the ground of newly discovered evidence should not be granted without a satisfactory showing of diligence, nor unless sufficient reason is shown why the evidence was not produced at the trial: People v. Ah Ton, 53 Cal. 741. Where there is reason to doubt that defendant at the time of the trial was ignorant of the existence of the evidence, and no attempt is made to procure it until after the trial, and no good reason for the delay is shown, a new trial ought not to be granted on the ground of newly discovered evidence: People v. Cummings, 57 Id. SS. For a case where proper diligence was shown, the moving party having been prevented from getting the evidence earlier, see People v. Stanford, 64 Id. 27. The affidavit of the witness, showing what his testimony will be, should be procured, or it should be shown that it could not be had: People v. Bealoba, 17 Id. 389; People v. Voll, 43 Id. 166; see also People v. Miller, 33 Id. 99. Newly discovered evidence simply cumulative: People v. Anthony, 56 Id. 397; People v. Chin Ah Hong, 61 Id. 376; or designed to contradict witnesses, will not entitle to a new trial: People v. Anthony, supra. Applications for new trials on account of newly discovered evidence are not favored by the courts. In the well-considered case of Berry v. State, 10 Ga. 511, it was said that it is incumbent on the party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: 1. That the evidence has come to his knowledge since the trial; 2. That it was not owing to the want of due diligence that it did not come sooner; 3. That it is so material that it would probably produce a different verdict if the new trial were granted; 4. That it is not cumulative only, viz., speaking to facts in relation to which there was evidence on the trial; 5. The affidavit of the witness himself should be produced, or its absence accounted for; 6. A new trial will not be granted, if the only object of the testimony is to impeach the character or credit of a witness.

New trial.-In a criminal case a new trial can only be granted on application of defendant: People v. Bangeneaur, 40 Cal. 613. The only grounds upon which a new trial will be granted are those specified in the section: People v. Bernstein, 18 Id. 699; People v. Fair, 43 Id. 137; see also People v. Keyser,_53 Id. 183; People v. Shainwold, 51 Id. 468; People v. Jocelyn, 29 Id. 562; People v. Chung Lit, 17 Id. 320; People v. Woods, 43 Id. 176; People v. McAuslan, Id. 55. An erroneous statement of the evidence by counsel during his argument to the jury is not ground for a new trial: People v. Barnhart, 59 Cal. 402.

SEC. 1182. The application for a new trial must be made before judgment. Motion for new trial.-In a criminal case when a motion for a new trial is made, it is heard as it would be were it brought on for

hearing immediately after the rendition of the verdict, and neither a statement nor the reporter's notes need be filed in support of the motion:

People v. Fisher, 51 Cal. 319; People v. Keyser, 53 id. 183; People v. Hewell, 6 Pac. C. L. J. 448. See People v. Sing Lum, 61 Cal. 538, where a motion for a new trial was made after remittitur issued from the supreme court dis

missing an appeal, judgment not having been entered, and after a nunc pro tunc order directing the judgment to be entered as of the date of its rendition; the motion was denied.

CHAPTER VII.

ARREST OF JUDGMENT.

1185. Motion in arrest of judgment defined.

SEC. 1185. 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. [Amendment, approved April 9, 1880; Amendments 1880, 25 (Ban. ed. 172); took effect immediately.]

Arrest of judgment on defendant's motion.-A motion in arrest of judgment may be made before or at the time the defendant is called for judgment. If a defendant has demurred and his demurrer has been overruled, he may move in arrest of judgment upon all the grounds of demurrer enumerated in section 1004, and upon those alone: People v. Dick, 37 Cal. 277; People v. Turner, 39 Id. 372; People v. Fair, 43 Id. 147; People v. Indian Peter, 48 Id. 250; People v. McCarty, Id. 557. See People v. Feilen, 58 Id. 218, when defects were not allowed to be used on this motion, they having been waived by a failure to demur. But if he has failed to demur, such motion can only be founded upon the grounds mentioned in section 1012: People v. Shotwell, 27 Id. 394; People v.

Swenson, 49 Id. 388. The defects in the indictment authorizing this motion must be specifically stated and pointed out as the basis of such motion in the lower court to entitle the ruling thereon to be reviewed on appeal: People v. Dick, 37 Id. 277. Prior to the adoption of the codes, an order arresting a judgment was not appealable, and could only be reviewed upon an appeal from the final judgment: People v. Turner, 39 Id. 370; People v. Ah Kim, 44 Id. 384. But such an order may now be appealed from: Sec. 1238, subd. 3, post. A vari ance in the name of the insurance company given in an indictment for arson to defraud and that proved is no ground for arresting a judgment: People v. Hughes, 29 Cal. 257; People v. Schwartz, 32 Id. 165.

1186. Court may arrest judgment without motion.

SEC. 1186. The court may also, on its own view of any of these defects, arrest the judgment without motion.

Arrest of judgment by court. If the evidence shows that the offense of a defendant indicted as an accessary was not committed in the county where the indictment was found,

1187. Effect of arresting judgment.

the court should arrest the judgment without the defendant making a motion to that effect: People v. Hodges, 27 Cal. 340; see Ex parte Hartman, 44 Id. 34.

SEC. 1187. 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. [Amendment, approved April 9, 1880; Amendments 1880, 25 (Ban. ed. 172); took effect immediately.]

Effect of arresting judgment. The effect of an order arresting a judgment in a criminal case is to place the defendant, as nearly as other and controlling rules of law will permit, in the same situation in which he was before

the indictment was found. Upon its entry he is entitled to his discharge, unless detained by virtue of some legal process or order: Ex parte Hartman, 44 Cal. 32.

1188. Defendant, when to be held or discharged.

SEC. 1188. If, 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 arrest of judgment shall operate as an acquittal of the charge upon which the indictment or information was founded. [Amendment, approved April 9, 1880; Amendments 1880, 25 (Ban. ed. 172); took effect immediately.]

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SEC. 1191. After a plea or verdict of guilty, or after a verdict against the defendant on the 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, which, in cases of felony, must be at least two days after the verdict, if the court intend to remain in session so long; but if not, then at as remote a time as can reasonably be allowed. [Amendment, approved March 30, 1874; Amendments 1873-4, 449; took effect July 1, 1874.]

Appointing time for judgment. --The court may, in the absence of the defendant, fix a day for pronouncing sentence: People v. Galvin, 9 Cal. 115. The time allowed after conviction before sentence is pronounced, may be waived by the defendant, and he may consent that judgment be pronounced immediately: People

v. Robinson, 46 Id. 94. The judgment in a criminal case need not be pronounced at th same term at which the verdict is rendered: People v. Felix, 45 Id. 163. A writ of mandate will not be issued to compel a court to render a judgment of acquittal: Ex parte Cage, Id. 248.

1192. Upon plea of guilty, court must determine degree.

SEC. 1192. Upon a plea of guilty of a crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree.

Court must determine degree of crime upon plea of guilty. The proceeding under this section is not a trial, nor has the defendant any right to have the question involved determined by a jury. The examination of witnesses to ascertain the degree of the crime need not be had at the time of or immediately after the plea of guilty; nor need any time elapse between the determination and the judgment. Any judgment or decision which shows the conclusion of the court as to the degree, from the examination, is sufficient: People v. Noll, 20 Cal. 164. The court should determine the degree, however, before pronouncing judgment: People v. Jefferson, 52 Id.

453. In In re Brown, 32 Id. 48, the defendant had pleaded guilty to an indictment for murder, which did not specify the degree. The court imposed a sentence of confinement in the state prison: Held, that the judgment was not a nullity, for the presumption was that the court, by testimony, ascertained the degree. If the defendant refuses to plead after his demurrer has been overruled, the court may pronounce judgment as upon a plea of guilty: People v. King, 28 Id. 266. So the court may direct a plea of not guilty to be entered: People v. Jocelyn, 29 Id. 562.

Jury upon conviction must determine degree: Sec. 1157, note.

1193. Presence of defendant.

SEC. 1193. For the purpose of judgment, if the conviction is for felony, the defendant must be personally present; if for a misdemeanor, judgment may be pronounced in his absence.

Presence of defendant.-Upon a conviction for a felony the defendant must be present when the judgment is pronounced; but the day for pronouncing judgment may be fixed in his absence: People v. Galvin, 9 Cal. 115. A judge who did not try the case, if legally presiding, has jurisdiction to pronounce sentence: People v. Henderson, 28 Id. 606. Where there is a

misdemeanor, or where the punishment is only
a fine, the defendant need not be present either
in person or by attorney, but judgment may be
rendered in his absence: People v. Ebner, 23
Id. 159; People v. Budd, 7 Pac. C. L. J. 486;
Steele v. Commonwealth, 3 Dana, 84.
Verdict in defendant's presence: Sec.
1148.

1194. When defendant in custody, how brought before court for judgment.

SEC. 1194. 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.

1195. How brought before the court when on bail.

SEC. 1195. If the defendant has been discharged on bail, or has deposited money instead thereof, and does not appear for judgment when his personal appearance 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 benchwarrant for his arrest.

1196. Bench-warrant to issue.

SEC. 1196. The clerk, on the application of the district attorney, may, at any time after the order, whether the court be sitting or not, issue a bench-warrant into one or more counties.

1197. Form of bench-warrant.

SEO. 1197. The bench-warrant must be substantially in the following form: County of. The people of the state of California, to any sheriff, constable, marshal, or policeman in this state: A B, having been on the day of ——, A. D. eighteen hundred and, duly convicted in the superior court of the county of, 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. Given under my hand, with the seal of said court affixed, this day of, A. D. eighteen hundred and By order of the court. [Seal.] E F, Clerk. [Amendment, approved April 12, 1880; Amendments 1880, 34 (Ban. ed. 200); took effect immediately.]

1198. Warrant, how served.

SEC. 1198. 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.

1199. Arrest of defendant.

SEC. 1199. Whether the bench-warrant is 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.

1200. Arraignment of defendant for judgment.

SEC. 1200. When the defendant appears for judgment he must be informed by the court, or by the clerk, under it its direction, of the nature of the charge against him, and of his plea, and the verdict, if any thereon, and must be asked

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