Legislation § 1176. 1. Enacted February 14, 1872 (in substance the same as Crim. Prac. Act, Stats. 1851, p. 260, § 438), and then read: "1176. When written charges have been presented, given, or refused, or when the charges have been taken down by the reporter, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges or the report, with the indorsements showing the action of the court, form part of the record, and any error in the decision of the court thereon may be taken advantage of on appeal, in like manner as if presented in a bill of exceptions."

2. Amendment by Stats. 1901, p. 489; unconstitutional. See note, § 5, ante.

3. Amended by Stats. 1905, p. 762; the code commissioner saying, "The purpose of this amendment is to correct imperfections and confusion in the language of the former section, and to more clearly point out the duty of the judge in noting his action upon instructions requested by the parties."

§ 1177. Bills of exceptions in criminal actions, amendment of. Settled, and time fixed for engrossment. [Repealed 1909; Stats. 1909, p. 1083.]

Legislation § 1177. Added by Stats. 1905, p. 475.
2. Repealed by Stats. 1909, p. 1083.

CHAPTER VI.

New Trials.

§ 1179. New trial defined.

§ 1180. Effect of granting.

§ 1181. In what cases it may be granted.

§ 1182. Application for, when made.

§ 1179. New Trial defined. A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given.

Legislation § 1179. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 462); in exact language of first sentence of Crim. Prac. Act, Stats. 1851, p. 260, § 439.

§ 1180. Effect of granting. 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 1874; Code Amdts. 1873-74, p. 449.]

Legislation § 1180. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 464); in substance the same as the second and third sentences of Crim. Prac. Act, Stats. 1851, p. 260, § 439.

2. Amended by Code Amdts. 1873-74, p. 449, adding, at end of section, "or be pleaded in bar of any conviction which might have been had under the indictment."

§ 1181. In what cases it may be granted. 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.

Legislation § 1181. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 465); in substance the same as Crim. Prac. Act, § 440, as amended by Stats. 1863, p. 161, § 17.

§ 1182. Application for, when made. The application for a new trial must be made before judgment, and the order granting or denying the same must be immediately entered by the clerk in the minutes. [Amendment approved 1905; Stats. 1905, p. 697.]

Legislation, § 1182. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 466); in substance the same as Crim. Prac. Act, Stats. 1851, p. 260, § 441. When enacted in 1872, § 1182 read: "1182. The application for a new trial must be made before judgment."

2. Amendment by Stats. 1901, p. 490; unconstitutional. See note, § 5, ante.

3. Amended by Stats. 1905, p. 697; the code commissioner saying of the addition, that it "is designed to conform the section to the present practice."

§ 1185.

§ 1186.

§ 1187.
§ 1188.

CHAPTER VII.

Arrest of Judgment.

Motion in arrest of judgment.
Court may arrest judgment on own motion.
Effect of arresting judgment.

Defendant, when to be held or discharged.

§ 1185. Motion in arrest of judgment. 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. It may be founded on any of the defects in the indictment or information mentioned in section ten hundred and four, unless the objection has been waived by a failure to demur, and must be made and determined before the judgment is pronounced. When determined, the order must be immediately entered by the clerk in the minutes. [Amendment approved 1909; Stats. 1909, p. 1087.]

Indictment, sufficiency of: See ante, § 960.

Grounds of demurrer to indictment or information: See ante, § 1004.

Waiver by failure to move to set aside indictment or information: See ante, § 996.

Waiver of defects by failure to demur: See ante, § 1012. Time to make motion in arrest of judgment: See post, § 1450. Legislation § 1185. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 467); based on Crim. Prac. Act, Stats. 1851, p. 260, SS 442, 444, which read: "§ 442. 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 mentioned in section two hundred and eighty-nine." "§ 444. The motion must be made before or at the time when the defendant is called for judgment." When enacted in 1872, § 1185 read: "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 mentioned in section 1004, unless the objection to the indictment has been waived by a failure to demur, and must be made before or at the time the defendant is called for judgment."

2. Amended by Code Amdts. 1880, p. 25, in second sentence. (1) adding "or information" after "indictment," and (2) omitting "to the indictment" after "objection."

3. Amendment by Stats. 1901, p. 490; unconstitutional. See note, § 5, ante.

4. Amended by Stats. 1905, p. 697, adding the final sentence, which read as at present; the code commissioner saying that the addition "is designed to conform this section to the present practice."

5. Amended by Stats. 1909, p. 1087, (1) omitting "or acquittal" from end of first sentence; (2) substituting the final words of the

present second sentence for "and must be made before or at the time the defendant is called for judgment."

§ 1186. Court may arrest judgment on own motion. The court may, on its own motion, at any time before judgment is pronounced, arrest the judgment for any of the defects mentioned in the last section, by order for that purpose entered upon its minutes. [Amendment approved 1909;

Stats. 1909, p. 1088.]

Legislation § 1186. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 468); based on Crim. Prae. Act, Stats. 1851, p. 261, § 443, which did not have the words "any of" before "these defects." When enacted in 1872, § 1186 read: "1186. The court may also, on its own view of any of these defects, arrest the judgment without motion."

2. Amendment by Stats. 1901, p. 490; unconstitutional. See note, § 5, ante.

The court may

3. Amended by Stats. 1905, p. 698, to read: "1186. also, of its own motion, arrest the judgment for any of the defects mentioned in the last section, by an order for that purpose entered upon its minutes." See code commissioner's note to amendment of § 1185 in 1905.

4. Amended by Stats. 1909, p. 1088.

§ 1187. Effect of arresting judgment. The effect of an order arresting the judgment is to place the defendant in the same situation in which he was before the indictment was found or information filed. [Amendment approved 1905; Stats. 1905, p. 698.]

Effect of arrest of judgment: See post, §§ 1188, 1452.

Legislation § 1187. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 470); in substance the same as Crim. Prac. Act, Stats. 1851, p. 261, § 445. When enacted in 1872, § 1187 read: "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."

2. Amended by Code Amdts. 1880, p. 25, adding at end of section, "or information filed."

3. Amendment by Stats. 1901, p. 490; unconstitutional. See note, § 5, ante.

4. Amended by Stats. 1905, p. 698, substituting "an order arresting the judgment" for "allowing a motion in arrest of judgment"; the code commissioner saying, "The purpose of this amendment is to give the same effect to an order of the court made on its own motion under § 1186 as § 1187 now gives to an order made on motion of the defendant."

§ 1188. Defendant, when to be held or discharged. 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 indict

ment 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 1880; Code Amdts. 1880, p. 25.]

Discharge of defendant: See post, § 1485.

Effect of arrest of judgment: See ante, § 1187; post, § 1452.

Legislation § 1188. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 470); in substance the same as Crim. Prac. Act, Stats. 1851, p. 261, § 446.

2. Amended by Code Amdts. 1880, p. 25, (1) in first sentence, adding "or information" after "indictment" in both instances; (2) in second sentence, omitting "or indictment" after "prosecution"; (3) in final sentence, adding "or information" after "indictment."