If a defendant is found guilty on an indictment containing several counts and he obtains a new trial, the case stands as if no trial had ever been had. State v. Balsley, 159 Ind. 395.

1923. Causes-Motion.-282. The court shall grant a new trial to the defendant for the following causes, or any of them:

First. Irregularities in the proceedings of the court, or jury, or for any order of the court or abuse of discretion by which the defendant was prevented from having a fair trial.

Second. When the jury has separated without leave of the court, after retiring to deliberate upon the verdict.

Third. When the jury has received and considered any evidence, paper or document not authorized by the court.

Fourth. When the jury has been guilty of any misconduct tending to prevent a fair and due consideration of the case.

Fifth. When the verdict has been found by means other than a fair expression of opinion on the part of all the jurors.

Sixth. Accident or surprise which ordinary prudence could not have guarded against.

Seventh. Error of law occurring at the trial.

Eighth. Newly discovered evidence, material for the defendant, which he could not, with reasonable diligence, have discovered and produced at the trial.

Ninth. When the verdict of the jury or the finding of the court is contrary to law, or is not sustained by sufficient evidence.

The motion for a new trial and the causes therefor shall be in writing and must be filed within thirty days from the date of the verdict or finding; and any such cause not disclosed in the record shall be sustained by affidavit. The motion must be filed in open court, if the court be then in session; otherwise it shall be filed with the clerk of the court.

See notes to section 1911, Burns' R. S. 1901.

Motions for new trials must state with a reasonable degree of certainty the causes for which a new trial is asked. Collett v. State, 156 Ind. 64.

An assignment in a motion for a new trial that the verdict is contrary to law is sufficient to raise the question whether there is evidence sufficient to sustain the verdict. Chapman v. State, 157 Ind. 300.

ARTICLE 18.-ARREST OF JUDGMENT.

SEC.

1924. Causes.

SEC.

1925. Defendant recommitted.

[Acts 1905, p. 584. In force April 15, 1905.]

1924. Causes.-283. A motion in arrest of judgment is an application in writing, on the part of the defendant, asking that no judgment be rendered on a plea, finding or verdict of guilty, and may be granted by the court for either of the following causes:

First. That the grand jury which found the indictment had no legal authority to inquire into the offense charged, for the reason that such offense was not within the jurisdiction of the court.

Second. That the facts stated in the indictment or affidavit do not constitute a public offense.

The court may also, on its view of any of these defects, arrest the judgment without motion. 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 affidavit filed, except in cases otherwise provided for.

See sections 1912, 1913, Burns' R. S. 1901, and notes.

Motions in arrest of judgment and the ruling thereon are a part of the record without a bill of exceptions, and such matters can not be put in the record by a bill of exceptions. Harris v. State, 155 Ind. 15.

Motions in arrest of judgment must be in writing and must state the causes therefor. Nichols v. State, 28 App. 674.

1925. Defendant recommitted.-284. When judgment is arrested in any case, and there is reasonable ground to believe that the defendant can be convicted of an offense, if properly charged, the court may order the defendant to be recommitted or admitted to bail anew, to answer a new indictment or affidavit.

[Acts 1905, p. 584. In force April 15, 1905.]

1926. Exceptions, taking.-285. On the trial of a criminal prosecution, exception may be taken by the defendant to any decision of the court upon a matter of law, by which his substantial rights are prejudiced. See sections 1914-1918, Burns' R. S. 1901, and notes.

1927. Appeal by state.-286. The prosecuting attorney may except to any decision of the court during the prosecution of any cause, and reserve the point of law for the decision of the supreme court. The bill of exceptions must state clearly so much of the record and proceedings as may be necessary for a fair statement of the question reserved. In case of the acquittal of the defendant, the prosecuting attorney may take the reserved case to the supreme court upon an appeal at any time within one year. The supreme court is not authorized to reverse the judgment upon such appeal, but only to pronounce an opinion upon the

correctness of the decision of the trial court. The opinion of the supreme court shall be binding upon the inferior courts and shall be a uniform rule of decision therein. When the decision of the trial court is decided to be erroneous, the appellee must pay the costs of the appeal.

See notes to section 1915, Burns' R. S. 1901. Appeal by state, sections 1967, 1968. When the state is authorized to appeal on reserved questions of law, the prosecuting attorney may take all steps necessary to perfect the appeal and may assign errors in the supreme court. State v. Sopher, 157 Ind. 360.

The state may appeal from the action of the court in dismissing a proceeding for indirect contempt of court. State v. Rockwood, 159 Ind. 94.

When a defendant is tried on an agreed statement of facts and is acquitted, the state can not appeal and obtain a review of the decision of the court as to the sufficiency of the facts. State v. Phillips, 25 App. 579.

The state on an appeal on reserved questions of law may obtain a review of instructions given to the jury. State v. Harrison, 162 Ind. 542; State v. Moore, 27 App. 83.

1928. Exceptions, time for bill.-287. The party objecting to a decision must except thereto at the time the decision is made; but he may reduce such exception, or exceptions, to writing at any time during the term, or, by leave of court, within such time thereafter as the court may allow. All bills of exceptions must be presented, within the time allowed, for the signature and approval of the judge, after which they shall be filed with the clerk: Provided, That if a motion for a new trial shall be filed in a cause, in which motion any decision, so excepted to, is assigned as a reason for such new trial, such motion shall carry such decision and exception forward to the time of ruling on such motion; and time may then be given by the court within which to reduce such exception, or exceptions, to writing, and to prepare and present such bill of exceptions.

See notes to section 1916, Burns' R. S. 1901.

When matters are a part of the record without a bill of exceptions, such matters can not be put in the record by a bill of exceptions. Harris v. State, 155 Ind. 15.

Bills of exception must be filed at the term at which the cause is disposed of unless special leave is given to file the same after the term. Klein v. State, 157 Ind. 146; Meyers v. State, 163 Ind. 345; State v. Chenoweth, 163 Ind. 94.

If time is given to file a bill of exceptions beyond the term, such leave must be granted before or at the time of rendition of judgment. State v. Kirk, 157 Ind. 113; Nichols v. State, 28 App. 674.

An original bill of exceptions containing the evidence may be made a part of the record in criminal actions. Dunn v. State, 162 Ind. 174.

If a bill of exceptions is signed and filed on the same day, it will be presumed to have been signed before it was filed. Dunn v. State, 162 Ind. 174.

The record must show that a bill of exceptions was filed, and such filing can not be shown by a recital in the bill nor by the file marks of the clerk. Harris v. State, 155 Ind. 15; Bingle v. State, 161 Ind. 369.

1929. Disability of judge, presenting to clerk.-288. In case of the death, disability or absence of the judge trying the cause, the bill of

exceptions may be presented to the clerk, who shall indorse thereon the date of such presentation and such presentation to the clerk, if made within the time allowed by the order of the court, shall be regarded as a compliance with such order; and in case of the death, resignation or removal from office of such judge, his successor shall be authorized to approve and sign such bill of exceptions. When the judge has been appointed specially, and, by reason of the death, disability or absence of such special judge, his approval of the bill of exceptions can not be procured, then the regular judge may approve the bill.

1930. Contents of bill-Record.-289. The bill of exceptions must contain so much of the evidence as is necessary to present the questions of law upon which the exceptions were taken; but it shall not be necessary for the bill to contain all of the evidence given in the cause or proceeding, unless the decision of the court, or the verdict of the jury, shall be called in question as being contrary to law, or not sustained by sufficient evidence. In case an original bill of exceptions. shall be incorporated into the transcript of the record of any case on appeal, such original bill shall, in every case, constitute a part of such transcript, as if copied therein by the clerk, whether such original bill or a copy thereof is specified in the praecipe, or otherwise directed to be incorporated in such transcript: Provided, That every pleading, motion in writing, report, deposition or other paper, filed or offered to be filed, in any cause or proceeding, whether received by the court, refused or stricken out, shall be a part of the record from the time of such filing or offer to file; and any order or action of the court in respect to any such pleading, motion in writing, report, deposition or other paper, and every exception thereto taken by any party shall be entered by the clerk on the minutes or record of the court, and the same when so entered shall be a part of the record without any bill of exceptions. Every oral motion, and the ruling of the court thereon and the exceptions taken thereto, shall be entered upon the record or minutes of the court and shall be a part of the record without any bill of exceptions: "And provided, further, That a motion to strike out or insert any matter, and the ruling thereon, shall not be a part of the record without a bill of exceptions, unless the matter to be stricken out or inserted is set out in full in such motion."

See notes to section 1917, Burns' R. S. 1901.

When matters are a part of the record without a bill of exceptions, such matters can not be made a part of the record by a bill of exceptions. Harris v. State, 155 Ind. 15.

[Acts 1905, p. 584. In force April 15, 1905.]

1931. When pronounced.-290.

After a finding or verdict of guilty, against the defendant, if a new trial be not granted, or the judgment. be not arrested, the court must pronounce judgment.

See sections 1919-1953, Burns' R. S. 1901, and notes.

1932. Defendant present.-291. For the purpose of judgment, if the conviction be for an offense punishable by death or imprisonment, the defendant must be personally present; if for a fine only he must be personally present, or some responsible person must undertake for him to replevy the judgment and costs; judgment may then be rendered in his absence.

1933. Defendant brought into court.-292. When the defendant is convicted of any offense, if he be in custody, the court may direct the officer in whose custody he is to bring him before it for judgment.

1934. Warrant for arrest.-293. If in any case the defendant be not present when his personal attendance is necessary, the court may order the clerk to issue a warrant for his arrest, which may be served in any county of this state, as a warrant of arrest in other cases is served. See notes to section 1922, Burns' R. S. 1901.

1935.

Defendant asked to show cause.-294. When the defendant appears for judgment, he must be informed by the court of the verdict of