their verdict, and if the foreman answer in the affirmative they must on being required declare the same.

Either general or special verdict may be found.

SEC. 314. The jury may either render a general verdict, or where they are in doubt as to the legal effect of the facts proven they may find a special verdict.

General verdict defined-form of general verdict.

SEC. 315. A general verdict upon a plea of not guilty, is either "guilty" or "not guilty," which imports a conviction or acquittal on every material allegation in the indictment. Upon a plea of a former conviction or acquittal of the same offence, it is either "for the Territory" or "for the defendant."

Conclusion of fact to be very plain.

SEC. 316. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It must present the conclusion of facts as established by the evidence and not the evidence to prove them, and then conclusions of facts must be so presented as that nothing remains to the court but to draw conclusions of law upon them.

Special verdict to be reduced to writing.

SEC. 317. The special verdict must be reduced to writing by the jury or in their presence, entered upon the minutes of the court, read to the jury and agreed to by them before they are discharged. No particular form required.

SEC. 318. The special verdict need not be in any particular form, but shall be sufficient if it present intelligibly the facts found by the jury.

How judgment upon special verdict to be rendered.

SEC. 319. The court must give judgment upon the special verdict as follows:

First: If the plea be not guilty and the facts prove the defendant guilty of the offence charged in the indictment, or of any other offence of which he could not be convicted in law under that indictment, judgment shall be given accordingly. But if the facts found do not prove the defendant guilty of the offence charged, or of any offence of which he could be so convicted under the indictment, judgment of acquittal must be rendered.

Second: If the plea be a former conviction or acquittal of the same offence, the court must give judgment of conviction or acquittal as the facts prove or fail to prove the former conviction or acquittal.

Court may order jury to further deliberate.

SEC. 320. If the jury do not in a special verdict pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if they find the evidence of facts merely

and not the conclusions of fact from the evidence as established to their satisfaction, the court may order them to retire for further deliberation. SEC. 321.

In all other cases the defendant may be found guilty of any offence the commission of which is necessarily included in that with which he is charged in the indictment.

Jury may agree as to part of the offenders.

SEC. 322. On an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly; and the case as to the rest may be tried by another jury.

If a verdict be neither general nor special, the court may order it to be reconsidered.

SEC. 323. If the jury render a verdict which is neither a general nor special verdict, the court may direct them to reconsider it, and it shall not be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury, whether to render a general verdict or to find the facts specially, and to leave the judgment to the court.

Defendant to be discharged even upon an informal verdict of acquittal.

SEC. 324. If the jury persist in finding an informal verdict, from which, however, it can be understood that their intention is to find for the defendant upon the issue, it shall be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly find against the defendant upon the issue, or judgment be given against him upon a special verdict.

Jury may be polled.

SEC. 325. When a verdict is rendered, and before it is recorded, the jury may be polled on the requirement of either party, in which case, they shall be severally asked whether it be their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.

Proceedings when prisoner is insane.

SEC. 326. If the defence be the insanity of the defendant, the jury must be instructed, if they acquit him on that ground, to state the fact in their verdict. The court may thereupon, if the defendant be in custody, and his discharged is deemed dangerous to the public peace or safety, order him to be committed or retained in custody until he becomes sane.

Defendant discharged when judgment is given.

SEC. 327. If judgment of acquittal be given on a general verdict, and the defendant be not detained for any other legal cause, he must be discharged as soon as the judgment is given.

CHAPTER XXXI.

BLLS OF EXCEPTIONS.

Exceptions to the indictment.

SEC. 328. On the trial of an indictment exceptions may be taken by the defendant or prosecuting attorney to a decision of the court on matter of law, in any of the following cases:

First: In disallowing a challenge to the panel of the jury or to an individual juror for a general disqualification, or for implied

bias.

Second: In admitting or rejecting witnesses or testimony or in deciding any question of law not a matter of discretion, or in charging or instructing the jury upon the law on the trial of the

case.

Exceptions to be signed by the judge who tried the cause.

SEC. 329. A bill of exceptions must be settled and signed by the judge who tried the cause, and filed with the clerk. Bills of exceptions to be settled at the trial.

SEC. 330. The bill of exceptions must be settled at the trial unless the court otherwise direct. If no such direction be given, the point of exception must be particularly stated in writing and delivered to the court, and shall immediately be corrected or added to until it is made conformable to the truth.

What bills of exceptions must contain.

SEC. 331. The bill of exceptions must contain so much of the evidence only as is necessary to present the question of law upon which the exceptions were taken.

CHAPTER XXXII.

NEW TRIALS.

Definition of a new trial.

SEC. 332. A new trial is a re-examination of the issue in the same court, before another jury after a verdict has been given. Effect of granting a new trial.

SEC. 333. 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 another in evidence or argument.

For what reason a new trial may be granted.

SEC. 334. The court may grant a new trial for the following causes or any of them:

First: When the trial has been had in the absence of the defendant, if the indictment be for felony.

Second: When the jury has received any evidence, paper or document out of court, not authorized by the court.

Third: When the jury have separated without leave of the court after retiring to deliberate upon their verdict, or have been guilty of any misconduct tending to prevent a fair and due consideration of the case.

Fourth: When the verdict has been decided by lot, or by means other than a fair expression of opinion on the part of all the jurors. Fifth: When the court has misdirected the jury, in a material matter of law.

Sixth: When the verdict is contrary to law or evidence. But no more than two new trials shall be granted for this cause alone. SEC. 325. The application for a new trial must be made before judgment, by the defendant.

CHAPTER XXXIII.

ARREST OF JUDGMENT.

Motion in arrest of judgment-when made and for what cause granted.

SEC. 336. 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, and may be granted by the court for either of the following causes:

First: That the grand jury who found the indictment had no legal authority to inquire into the offense charged, by reason of its not being within the jurisdiction of the court.

Second: That the facts stated do not constitute a public offence. SEC. 337. The court may also, on its view of any of these defects, arrest the judgment without motion.

Effect of arrest of judgment.

SEC. 338. 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.

SEC. 339. If, by the evidence on the trial, a fatal variance appear between such evidence and the offence charged in the indictment, and there are reasonable grounds to believe that the defendant can be convicted of such offence, if properly charged, the court may, at any time before such cause is submitted to the jury, arrest the trial, discharge the jury, and order the defendant to be recommitted to the officer of the proper county, or admitted to bail anew to answer a new indictment.

CHAPTER XXXIV.

JUDGMENT.

Court to pronounce judgment.

SEC. 340. After a verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the

judgment be not arrested, or a new trial granted, the court must pronounce judgment.

Defendant must be personally present when judgment pronounced.

SEC. 341. For the purpose of judgment, if the conviction be for a felony or any crime punishable by imprisonment in the penitentiary, the defendant must be personally present; if it be for any other crime, judgment may be pronounced in his absence.

SEC. 342. When the defendant is convicted of a felony, if he be in custody, the court may direct the officer in whose custody he is to bring him before it for judgment.

If defendant be absent, bench warrant to issue.

SEC. 343. If the defendant has been discharged on bail, or has deposited money instead thereof, and do not appear for judgment when his personal attendance is necessary, the court may order the clerk to issue a bench warrant for his arrest.

SEC. 344. The clerk, on the application of the prosecuting 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 for his arrest.

Bench warrant may be served in any county.

SEC. 345. The bench warrant may be served in any county of this Territory, in the same manner as a warrant of arrest.

SEC. 346. Whether the bench warrant be served in the county where 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.

Defendant to be asked if he have any thing to say.

SEC. 347. When the defendant appears for judgment, he shall be informed by the court, or by the clerk, under its direction, of the nature of the indictment, and of his plea and the verdict, if any thereon, and must be asked whether he have any legal cause to show why judgment should not be pronounced against him.

SEC. 348. If no sufficient cause be alleged, or appear to the court, why judgment should not be pronounced, it shall thereupon be rendered.

Of circumstances which aggravate extent of punishment.

SEC. 349. After a plea or verdict of guilty in any case where a discretion is conferred upon the court as to the extent of the punishment, the following are to be considered by the court as circumstances of aggravation, in pronouncing the sentence upon the defendant:

First: If the person committing the offence was, by the duties of his office, or by his condition, obliged to present the particular offence committed, or to bring offenders committing it to justice.