§ 464. Effect of granting a 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. In what cases 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 four hundred and eleven;

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 four hundred and twenty; 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.

(a) When serious doubts of defendant's guilt.—Where upon the whole case, there are serious doubts of defendant's guilt, a new trial should be ordered. (People v. Lane, 1 N. Y., Cr. R. 548.)

(b)Furnish no precedent.-Motions of this kind being addressed to the discretion of the court, each application must depend upon its distinct character

istics, and cannot furnish a precedent, (Ib.)

Newly discovered evidence.-The court must consider not only the afhlavits upon which the motion is based, but the testimony and proceedings on the former trial, and also whether the newly discovered evidence would if even on the former trial have changed the verdict. (People v. Hovey, 1 N. Y. Cr. R., 324, 93 N. Y. 651.)

A new trial should not be granted, when the alleged newly discovered evidence is inconsistent with that given by the party applying, on the former trial.-(Id.) (People v. Leighton, 1 N. Y. Cr. R., 468, 30 Hun., 354.) before the former trial cannot be considered newly discovered evidence, because it has since been discovered that it might have been important if used on the trial.-(People v. Hovey, 1 N. Y. Cr. R., 324, 93 N. Y. 651.)

It must be shown affirmatively by the party seeking the new trial that the proposed evidence is not cumulative. (Ib.) (People v. Leighton, 1 N. Y. Cr. R., 468.)

(d) When not cumulative.-When the defendant in a criminal action testifies in his own behalf, but no evidence of good character is given on his part, on a motion for a new trial on affiadvits showing defendant's good character, such evidence is not cumulative, and a new trial may be ordered when it appears such evidence, had it been given, might have changed the verdict. (People v. Lane, 31 Hun, 225.)

(e) No appeal lies.-No appeal lies from an order denying a new trial on the ground of newly discovered evidence.—(People v. Hovey, 93, N. Y. 651.

(f) Improper conduct of jury.-When, in a capital case after the testimony was closed, a part of the jury, in company with an officer, visited and examined the scene where the homicide occurred, it was held sufficient for a new trial. (Eastwood v. People 3 Park., 25; 14 N. Y., 562.)

(1) When does not prejudice the defendant.-A verdict will not be vitiated and a new trial ordered, when the irregularity of which the jury has been guilty has not prejudiced the defendant.--(People v. Draper, 1 N. Y., Cr. R., 138; People v. Menken, 3 N. Y.,.Cr. R., 243; People v. Druse, 5 N. Y. Cr. R., 10.

(h) Improper conduct of a juror.-During a trial a juror clandestinely visited the place where the offense was committed and held some conversation there. Held, that this was such misconduct as would require the granting of a new trial. (People v. Tyrell, 3 N. Y. Cr. R., 142.)

(i) Failure to give the admonition required by § 415. no ground.-A. mere inadvertent omission to give the admonition required in section 415 ante, unless it is shown to have worked injury to the defendant, is not a ground for granting a new trial. (People v. Draper, 1 N. Y. Cr. R.. 139.)

(j) Books left in room, no ground.-Certain books inadvertently left upon the table relating to the case, and which were consulted by the jury is not an irregularity authorizing the granting of a new trial, in the absence of proof of the contents or that they influenced the jury to defendant's prejudice. ̄ (Id) (k) Officers remaining in the room with the jury no ground.-The officers sworn to attend the jury should not remain in the same room while the jury is engaged in its deliberations, but the fact of his doing so, is not of itself a ground for granting a new trial. (lb.)

(1) Communication by court to a jury and vice versa during the prisoner's absence will not be presumed to have affected the verdict or been improper, nothing being shown to the contrary. People v. Kelley, 94 N. Y. 526.

Communication of court to jury, without having notified defendant's counsel is a ground for a new trial. (People v. Cassiano, 1 N. Y. Cr. R., 505.)

(m) Refusal to state extent of punishment.-A refusal by the court to inform the jury of the extent of punishment. is a ground for the new trial. (Ib.) (n) Error of courts charge. It is error for the court to charge the jury they must bring in a verdict of guilty in the first degree, or acquit.—(People v. Kelley, 3 N. Y., Cr. R., 35.)

When two defendants are on trial together for the same offense it is error for the court to charge the jury "if one is convicted both should be, Your verdict should be guilty or not guilty as to both defendants." (People v. McGorth, 5 N. Y. Cr. R., 4.)

It is error for the court to charge that the testimony of one witness is sufficient to convict.-(People v. Kelley, 3 N. Y. Cr. R., 35.)

It is error for the court to charge that the defense of an alibi is regarded by the law as a suspicious one.

(Ib)

In determining whether or not the court erred in refusing to charge the whole charge must be examined with reference to determining whether or not the plaintiff has any substantial ground for complaint. (Berry v. People, 1 N. Y. Crim. R., 43, 57.

(0) Judge may correct charge.-That the judge laid down an erroneous proposition and immediately laying down the correct rule, is no ground for a new trial. (Eggler v. People, 56 N. Y., 642.)

But it must be withdrawn absolutely and in explicit terms, or new trial will be granted. (People v. Kelley, 3 N. Y., Cr. R., 384.)

(p) Must be a question of law.-A new trial will not be granted because

the trial judge refused to charge the jury, there being no dispute as to the law in the case. (People v. Gray, 5 Wend., 289.)

(q) Objection to constitution of the court.-An objection that the court of oyer and terminer at which the prisoner was convicted of murder was not legally constituted will not be considered, if raised for the first time on appeal to the court of appeals, unsupported by evidence or exceptions. (People V. Cornetti, 92 N. Y., 85.)

(r) Verdict will be sustained, when.-A verdict will be sustained if any counts in the indictment are good. All may be had except one, and the verdict will be sustained. (Phelps v. People, 72 N. Y. 365, Hope v. People, 83 N. Y. 424; People v. Willett, 102 N. Y. 251; N. Y. State Rep., 384.)

A verdict will not be disturbed because the clerk's minutes do not show the whole proceeding in regard to drawing the jury where no prejudice or irregularity in that regard to the injury of the defendant is shown by the record.— (People v. Druse, 5 N. Y. Cr. R., 10.)

Excise cases.-Held. sufficient to sustain conviction upon a trial for sale of liquor without a license, if the prosecution makes out a prima facie case by showing the sale, it need not show that defendant had no license. (People v. McIntosh, 5 N. Y. Cr. R., 38.)

(8) Juror asleep.-A new trial in a capital case will not be granted because one of the jurors was apparently asleep, to the knowledge of the prisoner's counsel, who omitted to call the court's or district attorney's attention to it. (People v. Morrissey, 1 Sheld., 295.)

(t) Juror exempt.-Nor that one of the jurors was exempt from jury service by reason of age. (Ib.)

(u) Irregularity in drawing jurors.--Mere irregularities in drawing grand and petit jurors, unless they prejudice the prisoner, do not furnish ground for new trial. (Cox v. People, 80 N. Y., 500; People v. Petrea, 92 N. Y., 128.)

(r) Affidavits or declarations of jurors cannot be received to impeach their verdict. (Ostrander v. People, 28 Hun, 38.)

(c) Granting of new trials.-For the general term to grant a new trial on the general ground that justice requires it, or because the verdict is against the evidence, the case must be free from reasonable doubt. (People v. Jones, 3 N. Y. Crim. R., 252.)

The court of appeals will not review an appeal from the decision of the general term in a criminal case, unless it is certified by that court that the case was decided on questions of law only. (People v. Mongano, 1 N. Y. Crim. R., 417.) (r) What court can grant a new trial.-A court other than that in which the trial was had, can grant a new trial. (People v. Mongano, 1 N. Y. Cr. R., 417.)

(y) Comments of trial judge. The comments of the trial judge as to the force and effect of evidence, furnish no ground for reversal, when the jury was left to weigh the evidence and instructed to determine all the facts arising thereupon.(People v. Druse, 5 N. Y. Cr. R., 10. Id. People v. McInery & McDonald, 49.) (W) (2) Judgment reversed on omissions in the record.-When the defendant has pleaded a former conviction on the trial the conviction thereon will be reversed, when the record does not show that the jury passed upon and rendered judgment upon such plea of former acquittal interposed by the defendant. People v. Burch, 5 N. Y. Cr. R., 29.)

§ 466. (Amended 1887.) Application, when to be made.-The application for a new trial must be made before judgment, except an application made under subdivision seven of section four hundred and sixty-five, which may be made at any time within one year, and except in a 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. New.

(a) Only applies to sentence of death.-This section in no manner enlarges or qualifies the grounds previously provided for, upon which a motion of this nature may be made, but simply provides that in cases of a sentence of death, this motion may be made after judgment. (People v. Leighton, 1 N. Y. Cr. R., 468.)

(b) When court does not lose jurisdiction.-An adjournment of the court at the end of the term, pending a motion by the defendant for a new trial does not cause a lose of jurisdiction. (People v. Everhardt, 5 N. Y. Cr. R., 91.)

CHAPTER III.

ARREST OF JUDGMENT.

SECTION 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. (Amended 1882.) Motion in arrest of judgment, defined, and upon what defects founded.-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 three hundred and thirty-one.

(a) Motion how made.-A motion in arrest of judgment can only be made for defects which appear on the record, and cannot be based upon a mere affidavit showing the existence of extrinsic facts. (People v. Kelly, 94 N. Y., 526.)

() When considered a motion for a new trial.-A motion in arrest of judgment not made on the grounds specified in § 465, § 467, must be considered an application for a new trial on affidavits, and cannot be entertained and the alleged error is not before the court. (Id.)

As to what grounds such a motion can be made. (People v. Menken, 3 N. Y. Cr. R., 233.)

(c) Lack of formal arraignment no ground.--Judgment will not be arrested for want of a formal arraignment of, and plea on the part of defendant, when he was present through the whole trial with his counsel and did not ask to plead. (People v. Osterhout, 3 N. Y. Cr. R., 443, 30 Hun., 260.)

(d) What included in motion to arrest.-Motion in arrest is not limited to indictment but may be made on the whole record. (People v. Bruno, 6 Park., 657.)

(e) Variance, etc.-It cannot be arrested for a variance between the proof and the indictment. (People v. Onondago Gen. Sess., 1 Wend., 266; Case v. People, 6 Abb. N. Y., 151.)

(f) Mistakes of the court.-Neither are mistakes of the court on trial, nor of the jury grounds for. (People v. Thompson, 41 N. Y., 1; (People v. Allen, 43 id., 28.)

() Defect of venire.-A conviction in a capital case without a venire being returned and filed, held sufficient. (People v. McKay, 8 Johns., 212.)

(h) Irregularity in venire.-A mere irregularity in the venire no ground. (People v. Herkimer County, etc., 20 id. 310.)

(i) Limitation of time.-That the time laid in the indictment is beyond the period of limitation is no ground. (People v. Van Santford, 9 Cow., 655.)

(j) Denial of motion appealable. An order denying a motion in arrest of judgment is appealable. (People v. Bork, 1 N. Y. Cr. R., 393.)

(k) Effect of good count.-One good count is sufficient to sustain a conviction although all the rest are bad. (People v. Menken, 3 N. Y. Cr. R., 233; People v. Willett, 102 N. Y., 251; 1 N. Y. State Rep., 384.)

§468. Court may arrest judgment without motion. The 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.

(a) When the motion does not fall within this provision.-A motion in arrest of judgment and for a new trial, the grounds of which are confined to the exceptions taken upon the trial and the Judge's charge, does not fall within this provision. (People v. D'Argencourt, 2 N. Y. Cr. R., 277.)

(b) Effect of arrest of judgment.-An arrest of judgment after conviction is not a bar to a second indictment for the same offense. (People v. Casborus, 13 Johns., 351; People v. McKay, 18 id., 212; see People v. Dowling, 88 N. Y., 478.) § 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 recommitted 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 recommitted or held to answer, is the former verdict a bar to a new indictment.

TITLE IX.

OF THE JUDGMENT AND EXECUTION.

CHAPTER I. The judgment.

II. The execution.

CHAPTER I.

THE JUDGMENT.

SECTION 471. 472. Time for pronouncing judgment, to be appointed by the

court.

473. In felony, defendant must be present; in misdemeanor, judgment may be pronounced in his absence.

474. When defendant is in custody, how brought before the court for judgment.