CHAPTER VI. NEW TRIALS. 13. New trial defined. $350. Its effect. $28. In what cases it may be granted. Tai is a re-examination of the issue in wurt, before another jury, after a verdict has **TA § 3 78-Examination after verdict, of facts mia 100: at an error which is apparent on anced in arrest of judgment, will Ta new 3 Conn. 289; as the omission of sers Tame on the bill found by the grand jury De mane of a witness was indorsed on the l truttrom the real name, the misnomer was not Pas kaucun for a new trial-6 Pac. C. L. J. 399. arewing wi timpanneling of the jury come too late ANN They are deemed waived if not taken in A general excitement against the prisoner at the time to the community at large, is not a ground for A DEN ZA VAS: but if such excitement pervade the jury-dek, and wress (2) dice of the defendant, the verdit ought to be set It is no ground for a new trial that on a change or as ane of the triers is, on the panel of the jury, in arteria (2 rase—41 Cal. 147; id. 167. The motion mus be made tira rec, sau flested, the grounds and rulings of the court may be embodieds of exceptions, and can be reviewed by the Supreme Court in no other way-41 Cal. 651. 1180. The granting of a new trial places the parties in the same position as if no trial had been had. All the tes roy must be produced anew, and the former verdict not be used or referred to either in evidence or in arbe pleaded in bar of any conviction which been had under the indictment. [Approved B à à effect July 1st, 1874.] THI verdict has been rendered against the De vert may, upon his application, grant a * de daring cases only: 1. When the trial has been had in his absence, if the in ctment is for a felony. 2. When the jury has received any evidence out of court her than that resulting from a view of the premises. 3. When the jury has separated without leave of the urt, after retiring to deliberate upon their verdict, or en guilty of any misconduct by which a fair and due asideration of the case has been prevented. When the verdict has been decided by lot, or by any ans other than a fair expression of opinion on the part all the jurors. When the court has misdirected the jury in a matter aw, or has erred in the decision of any question of law ing during the course of the trial. When the verdict is contrary to law or evidence. When new evidence is discovered material to the deant, and which he could not, with reasonable diligence, discovered and produced at the trial. When a mofor a new trial is made upon the ground of newly-disred evidence, the defendant must produce at the hearin support thereof, the affidavits of the witnesses by n such evidence is expected to be given, and if time juired by the defendant to procure such affidavits, court may postpone the hearing of the motion for length of time as, under all the circumstances of the may seem reasonable. ands for new trial.-This section clearly excludes all other ds-43 Cal. 146, overruling 9 Cal. 298. Instead of appealing from dgment, defendant may move for a new trial on any or all of the ds mentioned in this section, and if the motion be denied, may at the draft of a bill of exceptions, and have the same settled as led in § 1174-53 Cal. 184. See ante, § 1172. d. 1. It is not sufficient simply to object that defendant was not at at times when acts can only be done in his presence; he must his absence-4 Cal. 218; 37 id. 274. d. 2. Where a witness conversed with one or more of the on the facts of the case, when out of court to view the premtwas error-43 Cal. 167. See ante, § 1102. d. 3. A separation of the jury in a capital case is prima facie dfora new trial, subject to be rebutted by proof that no improper nce reached the jury-22 Cal. 348; 12 Ark. 732; 1 Conn. 401; 19 485; 20 Ga. 752; 8 Humph. 597; 11 Ired. 514; 21 I. 373; 30 id. 256; L151; 1 Kan. 340; 1 Cowen, 26; 39 Miss. 721; 3 Minn. 444; 7 N. H. TITLE VIII. Of Judgment and Execution. CHAP. I. THE JUDGMENT, §§ 1191-1207. CHAPTER I. THE JUDGMENT. 51191. Appointing time for judgment. § 1192. Upon plea of guilty, court must determine degree. § 1193. Presence of defendant. § 1194. Defendant in custody, how brought for judgment. Bench-warrant to issue. § 1195. § 1196. § 1197. Form of bench-warrant. § 1198. Warrant, how served. § 1199. Arrest of defendant. § 1200. Arraignment of defendant for judgment. § 1201. § 1202. What cause may be shown against the judgment. § 1203. Circumstances in aggravation or mitigation of punishment. § 1204. § 1206. Judgment to pay a fine constitutes a lien. § 1207. Entry of judgment and judgment roll. 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. [Approved March 30th, in effect July 1st, 1874.] Appointing time for judgment.-A judgment cannot be pronounced before the verdict is complete and is recorded in the minutes-6 Pac. C. L. J. 65. It is not error for the court to name the day for passing sentence when the defendant is not in court-9 Cal. 115. The defendant may waive the statutory time, and consent that judgment be pronounced immediately-46 Cal. 96; as a party may waive a right created by statute-id.; but in no case can judgment be rendered within six hours after verdict-id. It is doubtful whether the limitation of time fixed by the Code applies in case of a judgment on a plea of guilty-46 Cal. 96. A judge who did not preside at the trial, may, if legally presiding at the time fixed, pronounce judgment-28 Cal. 465. The time at which the sentence shall be carried into effect forms no part of the judgment-2 Ired. 204. A mandate will not issue to compel a court to render judgment of acquittal in a criminal case-45 Cal. 249. See ante, § 1155, note. 1192. Upon a plea of guilty of a crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree. Court to determine degree.-Upon the plea of guilty, the court is to determine the degree-52 Cal. 454; 49 id. 178; 20 id. 166; and this must be done before passing sentence-52 Cal. 454. On a plea of guilty, it is not necessary that any time should elapse between the determination by the court of the degree of the crime and the pronouncing of the judgment-20 Cal. 166; nor that the determination should be expressed in any particular form. Any decision or judg ment which shows the conclusions derived from the examination is a compliance with the statute-20 Cal. 166. If the jury convict of murder in the first degree, and cannot agree upon the degree of punishment, or do not declare it in their verdict, it is the duty of the court to pronounce judgment of death-49 Cal. 174. The presumption is, that the court, by testimony, ascertains the degree; hence, a sentence of imprisonment where defendant pleaded guilty of murder, was a nullity-32 Cal. 48. The proceeding under this section is not a trial, and the defendant has not the right to have the question decided by a jury-20 Cal. 166. If a demurrer to an indictment is overruled, and the defendant refuses to plead, the court may pronounce judgment against him as on a plea of guilty-28 Cal. 271; see 29 id. 563. Where there has been a general verdict of guilty on the whole indictment containing several counts for offenses of different grades, a sentence on the count for the highest grade is proper-75 N. Y. 487. 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-42 Cal. 168. Upon a conviction for felony, It is necessary that the defendant should be present when judgment is pronounced-42 Cal 168; 9 id. 115; but the court may, in the absence of the defendant, fix the day for pronouncing judgment-9 Cal. 115. Absence of defendant is not permitted at the sentence-39 Ala. 681; 49 Miss. 716; 52 id. 391; 69 Pa. St. 286; 1 Root, 90. Where the offense is a misdemeanor, or where the punishment is simply a fine, the absence of defendant at his sentence, being under recognizance, may be allowed -1 Curt. 435; 7 Cowen, 525; 4 Iowa, 354; 9 Dana, 304; 19 Ark. 214; 12 Wend. 344; 16 Pa. St. 129; 36 Miss. 531; 9 Ill. 111. 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. 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, |