shown that the grand jury was not drawn, summoned or im-
paneled as provided by law, and that the facts in relation
thereto were unknown to the defendant or his attorney until
after the trial jury in the case was sworn and were not of
record. When a motion for a new trial is made on the
ground of newly discovered evidence the defendant must
produce at the hearing in support thereof affidavits of wit-
nesses, or he may take testimony in support thereof as pro-
vided in section 638, and if time is required by the defendant
to procure such affidavits or testimony, the court may post-
pone the hearing of the motion for such length of time as
under all the circumstances of the case may seem reason-
able. The application for a new trial on the ground that
the grand jury was not drawn, summoned, or impaneled as
provided by law may be shown in like manner.
1910)

(5937 R. L.

566. Time for Filing Motion-The application for a new trial must be made before judgment is entered; but the court or judge thereof may, for good cause shown, allow such application to be made at any time within 30 days after the entry of the judgment. A motion for a new trial on the ground of newly discovered evidence may be made after judgment at the term at which the case was tried, or in vacation, before the judge or at the next term of court, and if on the ground that the grand jury was not properly drawn or imjaneled, then the motion must be made not later than the next term after trial. (5938 R. L. 1910)

567. 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 plea or verdict of guilty, or on a verdict against the defendant on a plea of former conviction or acquittal. It may be founded on any of the defects in the indictment or information mentioned as grounds of demurrer unless such objection has been waived by a failure to demur, and must be before or at the time the defendant is called for judgment. (5939 R. L. 1910)

568. Court May Arrest on Own Motion-The court may also on its own 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 or information was filed, and in no case of arrest of judgment is the verdict a bar to another prosecution. (5940 R. L. 1910)

569. Proceedings After Motion Sustained-If from the evidence on the trial, 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 to the officer of the proper county, or admitted to bail anew to answer the new indictment or information. If the evidence shows him guilty of another offense, he must be committed or held thereon; 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 exonerated, or if money has been deposited instead of bail it must be refunded to the defendant and the arrest of judgment operates as an acquittal of the charge upon which the indictment or information was founded. (5941 R. L. 1910)

General Notes-A conviction of lesser crime in the first instance is no bar to conviction of the greater crime in the second instance; Turner v. Terr, 15 Okla. 557.

If new trial is granted, it is not necessary to pass on motion in arrest of judgment; Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059.

Alleged errors must be presented in motion for new trial before they will be considered by appellate court, except sufficiency of charge and question of jurisdiction; Peters v. U. S. 2 Okla. 116; Spencer v. State, 5 Okla. Cr. 7, 113 P. 224; Brink v. Terr. 3 Okla. 588; May v. State, 12 Okla. 108, 152 P. 338.

Matters occurring outside the record and made grounds for new trial, must be supported by evidence; Patswald v. U. S. 5 Okla. 351; Smiley et al. U. S. 15 Okla. 314.

If movant had knowledge of what an absent witness would testify, it would not be newly discovered evidence; Watkins v. U. S. 5 Okla. 729.

Newly discovered evidence must not be cumulative, and must be of such character as, with reasonable probability, would have compelled a different conclusion; Douthitt v. Terr. 7 Okla. 55; Asher v. Terr. 7 Okla. 189; Byars v. Terr, 1 Okla. Cr. 678, 100 P. 261; Cook v. State, 4 Okla. Cr. 519; Howe v. State, 9 Okla. Co. 453, 132 P. 499; Calvert v. State, 10 Okla. Cr. 186 135 P. 737; Diffey v. State. 10 Okla. Cr. 190, 135 P. 942; Noel v. State, 14 Okla. Cr. 548, 174 P. 293.

Granting new trial on grounds of newly discovered evidence is largely in discretion of trial court and that discretion will not be disturbed, except in case of abuse; Hawkins v. State, 11 Okla. Cr. 73, 142 P. 1093; Seigler v. State, 11 Okla. Cr. 132; Collins v. State, 11 Okla. Cr. 196, 144 P. 806: Cantrell v. State, 12 Okla. Cr. 534, 159 P. 1092; Drew v. State, 6 Okla. Cr. 348, 118 P. 677; Harper v. State. 7 Okla. Cr. 581, 124 P. 1116; Diffey v. State, 10 Okla. Cr. 190, 135 P. 942: Meer v. Terr. 15 Okla. 34; Boone v. State, 15 Okla. Cr. 29, 175 P. 511. New trial should not be granted to procure impeaching evidence; Glenn v. Terr. 15 Okla. 231; Caple v. State, 3 Okla. Cr. 622, 105 P. 618.

New trial should not be granted on account of newly discovered evidence where such evidence could have been procured with due dillgence before trial; Penn v. State, 13 Okla. Cr. 368. 164 P. 992; Luppy

et al v. State, 14 Okla. Cr. 386, 171 P. 347; Davis v. Terr. 15 Okla. 462; Slater v. U. S. 1 Okla. Cr. 275, 98 P. 110; Penn v. State, 13 Okla. Cr. 868, 164 P. 992.

Where due diligence has been shown, and the character of newly discovered evidence is such as would probably change the result, a new trial should be granted; McHugh v. Terr. 17 Okla. 2.

Where newly discovered evidence is of a privileged character, new trial should not be granted; Luppy v. State, 14 Okla. Cr. 386, 171 P. 347. New trial cannot be granted on ground of newly discovered evidence after the next succeeding term at which the case was tried; Parker v. State, 10 Okla. Cr. 541, 139 P. 708.

New trial should not be granted on grounds that state witness made statements at variance with his testimony; Bowlegs v. State, 9 Okla. Cr. 70, 130 P. 824.

As to whether admission of incompetent evidence is prejudicial, depends on the character of evidence and the probable effect of such, Druey v. Terr. 9 Okla. 400.

Motion for new trial must be made part of the record or it will not be considered; Jones v. Terr. 4 Okla. 46; Ledgerwood v. State, 6 Okla. Cr. 105, 116 P. 202; May v. State, 12 Okla. Cr. 108; 152 P. 338; Tudor v. State, 14 Okla. Cr. 67, 167 P. 341.

Proof of the commission of the crime after date of filing information is reversable; Bandy v. State, 13 Okla. Cr. 468, 165 P. 616.

That County Attorney asked a few questions which called for incompetent answer, does not, within itself, warrant new trial; Harkins v. State, 14 Okla. Cr. 440, 172 P. 469.

Subsequent acquittal of co-defendant is no grounds for new trial for one already convicted; Simmons v. Terr. 11 Okla. 575.

Court should hear argument on motion for new trial, but mere refusal to do so is not error; Hodge v. Terr. 12 Okla. 109.

Use of intoxicating liquors as a beverage by a juror during trial or deliberation will vitiate verdict; Bilton v. State, 1 Okla. Cr. 566, 99 P. 163. But use of liquors mixed with curative drugs may not be grounds for new trial; Allen v. State, 13 Okla. Cr. 396, 164 P. 1002.

New trial will not be granted in misdemeanor case because record fails to show defendant was arraigned or waived same; Stack v. State, 2 Okla. Cr. 699, 105 P. 320; Rutter v. Terr. 11 Okla. 454.

Mere fact that jury and bailiff, before cause was submitted, had group picture made, is no ground for new trial; Blair v. State, 4 Okla. Cr. 360. New trial should not be granted on account of prejudiced juror when defendant takes stand and admits his guilt; Stewart v. State, 4 Okla. Cr. 564, 109 P. 243.

New trial should be granted when witness has testified without having been sworn, provided defendant was ignorant of this fact at time; Gibbons v. State, 5 Okla. Cr. 214.

New trial will not be granted on account of misconduct of juror unless such conduct was clearly prejudicial to rights of defendant; Tinker v. State, 5 Okla. Cr. 584, 115 P. 475.

Where, subsequent to conviction, a witness who testified for the state, makes affidavit that such testimony was false, and it appears that, without such testimony, conviction would not have resulted, new trial should be granted; Chappell v. State, 6 Okla. Cr. 398, 119 P. 139. When state's testimony is conflicting, and no testimony is introduced on part of defendant, and the record discloses errors calculated to mislead the jury, new trial will be granted; Stuedle v. State, 6 Okla. Cr. 494, 119 P. 1022.

Granting new trial placed defendant in same status as if no trial had been had; Bonham v. State, 6 Okla. Cr. 230, 118 P. 149.

-,"

A statement of juror to court: "Eight for conviction and Fouris ground for new trial; Poling v. State, 12 Okla. Cr. 27, 151 P. 895. When proof fails to establish the charge of the commission of the crime and defendant is convicted, new trial should be granted; Blake v. State, 12 Okla. Cr. 549, 160 P. 30.

If no exceptions are saved from an order overruling motion for new trial, appellate court will not consider the motion; Reed v. U. S. 2 Okla.. Cr. 652, 103 P. 371; Frazier v. U. S. 2 Okla. Cr. 657, 103 P. 373.

No appeal lies from an order overruling motion for new trial; McLellan v. State, 2 Okla. Cr. 633, 103 P. 876; Merrill v. State, 11 Okla. Cr. 278, 145 P. 1109; State v. Curley, 13 Okla. Cr. 25, 161 P. 831.

If records are lost or destroyed through no fault of defendant, he should be given new trial; Bailey v. U. S. 3 Okla. Cr. 175, 104 P. 917; Elliott v. State, 5 Okla. Cr. 63, 113 P. 213.

Lost instructions is no ground for new trial-they should be substituted; Hawkins v. State, 5 Okla. Cr. 276, 114 P. 356; Devore v. Terr. 2 Okla. 562.

A juror will not be permitted to impeach his own verdict; Colcord v. Conger, 10 Okla. 458; Barnes v. Terr., 19 Okla. 373, 91 P. 848; Petitti v. State, 2 Okla. Cr. 131, 100 P. 1122; Spencer v. State, 5 Okla. Cr. 7, 113 P. 224; Star v. State, 9 Okla. Cr. 210, 131 P. 542; Overton v. State, 7 Okla. Cr. 204; Keith v. State, 7 Okla. Cr. 156, 123 P. 172; C. R. I. & P. Ry. Co. v. Brown, 55 Okla. 173, 154 P. 1161; Brantley v. State, 15 Okla. Cr. 6, 175 P. 51; Kinney v. State, 15 Okla. Cr. 653, 179 P. 946 Conviction based on void statute will not stand, though no motion to set aside same be filed; Buckles v. State, 5 Okla. Cr. 109, 113 P. 244. Loss of stenographer's notes is no ground for new trial; Thornsberry v. State, 8 Okla. Cr. 88, 126 P. 590.

See prior expression of opinion of juror as grounds for new trial; Horton v. State, 10 Okla. Cr. 294, 136 P. 177.

New trial cannot be granted when motion is filed at later term, unless made under section 566. Prohibtion is remedy; State ex rel v. Stanfield, 11 Okla. Cr. 147, 143 P. 519.

Presiding judge cannot leave the bench and prosecute case in the court over which he presides; Lilly v. State, 7 Okla. Cr. 284, 123 P. 575. Presiding judge cannot leave bench so as to lose control of trial; Wright v. State, 7 Okla. Cr. 280, 123 P. 434.

Statement of trial judge is not sufficient to grant new trial, unless it is clearly prejudicial to rights of defendant; Barnes v. Terr., 19 Okla. 373, 91 P. 848.

A verdict of guilty will not be set aside because the evidence is conflicting, or immaterial, incompetent, and irrelevant testimony has been admitted. if there is enough competent evidence reasonably supporting such verdict, unless fundamental rights have been violated; Douthitt et al. v. Terr., 7 Okla. 55; Boggs v. U. S. 10 Okla. 424; Harvey v. Terr., 11 Okla. 157; Filson v. Terr., 11 Okla. 352; Smith v. Terr., 11 Okla. 656; New v. Terr., 12 Okla. 173; Hinsley v. U. S. 1 Okla. Cr. 98 P. 363; Alderman v. Terr., 1 Okla. Cr. 562, 98 P. 1026; Bennefield v. U. S. 2 Okla. Cr. 44, 100 P. 34; Fuller v. Terr.. 2 Okla. Cr. 86, 99 P. 1098; Bolman v. State, 2 Okla. Cr. 235, 101 P. 135; Hendrix v. U. S. 2 Okla. Cr. 240, 101 P. 125; Reed v. State, 2 Okla. Cr. 592. 103 P. 1042; Phillips v. U. S., 2 Okla. Cr. 628, 103 P. 861; Hines v. U. S., 2 Okla. Cr. 639, 103 P. 879; Moody v. U. S., 2 Okla. Cr. 662, 103 P. 862: Cox v. Terr.. 2 Okla. Cr. 668, 104 P. 378; Stack v. State, 2 Okla. Cr. 697, 103 P. 1068;

Rose v. State, 3 Okla. Cr. 12, 103 P. 1066; Rae v. State, 3 Okla. Cr. 282, 105 P. 386; Caple v. State, 3 Okla. Cr. 621, 105 P. 618; Ingram v. State, 3 Okla. Cr. 634, 108 P. 552; Beasley v. State, 3 Okla. Cr. 699, 109 P. 238; Moore et al. v. State, 4 Okla. Cr. 212; Williams v. State, 4 Okla. Cr. 523; Edwards v. State, 5 Okla. Cr. 20, 113 P. 214; Smith v. State, 5 Okla. Cr. 296, 114 P. 278; Braziel v. State, 5 Okla. Cr. 540, 115 P. 618; Kerkendall v. State, 5 Okla. Cr. 570, 115 P. 612; Tinker v. State, 5 Okla. Cr. 584, 115 P. 475; Wilson v. State, 5 Okla. Cr. 649; Suitor v. State, 6 Okla. Cr. 305, 118 P. 412; Flanders v. State, 6 Okla. Cr. 318, 118 P. 593; Smith v. State, 6 Okla. Cr. 380, 118 P. 1003; Boucher v. State, 6 Okla. Cr. 387, 118 P. 1102; Ragland v. State, 6 Okla. Cr. 434, 119 P. 277; Gritts v. State, 6 Okla. Cr. 534, 118 P. 673; Pugh v. State, 6 Okla. Cr. 579, 120 P. 296; Sims v. State, 7 Okla. Cr. 7, 120 P. 1032; Summers v. State, 7 Okla. Cr. 10, 120 P. 1031; Nowlin v. State, 7 Okla. Cr. 27, 115 P. 625; Etchison v. State, 7 Okla. Cr. 106, 122 P. 242; Ritchie v. State, 7 Okla. Cr. 188, 122 P. 944; Motley v. State, 7 Okla. Cr. 198, 122 P. 1110; Overton v. State, 7 Okla. Cr. 204, 123 P. 175; Lawyer v. State, 7 Okla. Cr. 361, 123 P. 850; Bigfeather v. State, 7 Okla. Cr. 364, 123 P. 1026; Stanfield v. State, 7 Okla. Cr. 397, 123 P. 1033; Deaton v. State, 7 Okla. Cr. 436, 123 P. 701; Brisco v. State, 7 Okla. Cr. 517, 124 P. 626; Byers v. State, 7 Okla. Cr. 650, 126 P. 252; Brown v. State, 7 Okla. Cr. 678, 126 P. 263; Curlee v. State, 8 Okla. Cr. 263, 127 P. 266; Fulmer v. State, 8 Okla. Cr. 528, 128 P. 1103; Green v. State, 8 Okla. Cr. 595, 129 P. 683; Morgan v. State, 9 Okla. Cr. 22, 130 P. 522; Curry v. State, 9 Okla. Cr. 38, 130 P. 513; Baker v. State, 9 Okla. Cr. 47, 130 P. 524; Bishop v. State, 9 Okla. Cr 175, 130 P. 1173; Maggard v. State, 9 Okla. Cr. 236, 131 P. 549; Cox v. State, 9 Okla. Cr. 378, 131 P. 1109; Tempy v. State, 9 Okla. Cr. 446, 132 P. 383; Cook v. State, 9 Okla. Cr. 509, 132 P. 507; High v. State, 9 Okla. Cr. 523, 132 P. 509; Greer v. State, 9 Okla. Cr. 669, 132 P. 1122; Samples v. State, 10 Okla. Cr. 102, 134 P. 838; Davis v. State, 10 Okla. Cr. 169, 135 P. 438; Stark v. State, 10 Okla. Cr. 178, 135 P. 441; Calvert v. State, 10 Okla. Cr. 185, 135 P. 737; Barnes v. State, 10 Okla. Cr. 188, 135 P. 944; Diffey v. State, 10 Okla. Cr. 190, 135 P. 942; Harrison v. State, 10 Okla. Cr. 210, 135 P. 948; Jones v. State, 10 Okla. Cr. 216, 136 P. 182; Remillard v. State, 10 Okla. Cr. 438, 137 P. 370; Jones et al. v. State, 10 Okla. Cr. 450, 137 P. 740; Carney v. State, 10 Okla. Cr. 492, 138 P. 1042; Jackson v. State, 10 Okla. Cr. 549, 139 P. 704; Maddox v. State, 10 Okla. Cr. 569, 139 P. 994; Tronier v. State, 10 Okla. Cr. 610, 140 P. 789; Cross v. State, 11 Okla. Cr. 117, 143 P. 202; Thorp v. State, 11 Okla. Cr. 392, 146 P. 915; Kintz v. State, 12 Okla. Cr. 95, 152 P. 139; Stephens v. State, 12 Okla. Cr. 168, 152 P. 1134; Flowers v. State, 12 Okla. Cr. 320, 155 P. 904; Cook v. State, 12 Okla. Cr. 325, 156 P. 233; Hopper v. State, 12 Okla. Cr. 327, 156 P. 240; Browder v. State, 12 Okla. Cr. 285, 155 P. 198; Mitchell v. State, 12 Okla. Cr. 275, 154 P. 1197; Williams v. State, 12 Okla. Cr. 39, 151 P. 900; Smith v. State, 12 Okla. Cr. 25, 151 P. 694; Jones v. State, 12 Okla. Cr. 255, 154 P. 689; Piazzi v. State, 13 Okla. Cr. 60, 161 P. 1176; Ward v. State, 13 Okla. Cr. 81, 162 P. 232: Magnetti v. State, 13 Okla. Cr. 102, 162 P. 241; Pease v. State, 13 Okla. Cr. 106, 162 P. 238; Gordon v. State, 13 Okla. Cr. 117, 162 P. 444; Womack v. State, 13 Okla. Cr. 323, 164 P. 477; Horn v. State, 13 Okla. Cr. 354, 164 P. 683; Gant v. State, 13 Okla. Cr. 411, 164 P. 999; Thomas v. State, 13 Okla. Cr. 414, 164 P. 995: Glaze v. State, 13 Okla. Cr. 431, 165 P. 211; Neighbors et al. v. State, 13 Okla. Cr. 437, 164 P. 1155; Lemley v. State, 13 Okla. Cr. 452, 164 P. 1152; Wilson v. State, 13 Okla. Cr. 470, 165 P. 618; Baldridge v.