A trial without an assignment or plea is illegal, and the question is saved by a motion for a new trial that the verdict is contrary to law. Bowen v. State, 108 Ind. 411. When a verdict or finding is contrary to law, a motion for a new trial must be made on that ground. Lindsey v. State, 82 Ind. 7.

The supreme court will not reverse a judgment on the weight of evidence. Kleespies v. State, 106 Ind. 383; Hudson v. State, 107 Ind. 372; Skaggs v. State, 108 Ind. 53; Coryell v. State, 130 Ind. 51.

When there is a total want of evidence on a material issue the supreme court will reverse the judgment. Bruce v. State, 87 Ind. 450.

The motion for a new trial must be made before the expiration of the term at which the judgment was rendered; and the grounds therefor must be in writing.

An application for a new trial must be made before judgment. Romaine v. State, 7 Ind. 63; Willis v. State, 62 Ind. 391; Burke v. State, 72 Ind. 392; Sturm v. State, 74 Ind. 278.

Under the code of 1881 a motion for a new trial may be filed after judgment during the term. Calvert v. State, 91 Ind. 473.

A second or supplemental motion may be filed by leave of the court. Dennis v. State, 103 Ind. 142.

All affidavits or papers forming parts of motions for a new trial must be put in the record by bill of exceptions. Kleespies v. State, 106 Ind. 383; McClure v. State, 116 Ind. 169; Meredith v. State, 122 Ind. 514.

SEC.
1912. Causes.

ARTICLE 18.-ARREST OF JUDGMENT.

SEC.

1913. Re-committal of defendant.

[1881 S., p. 114. In force September 19, 1881.]

1912. (1843.) Causes.-268. A motion in arrest of judgment is an application in writing, on the part of the defendant, that no judgment be rendered on a plea or verdict of guilty or finding of the court, 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, by reason of its not being within the jurisdiction of the court.

Second. That the facts stated in the indictment or information 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 information filed, except in cases otherwise provided for.

A variance between the affidavit and information is no cause for arresting the judg ment. Morris v. State, 31 Ind. 189.

An arrest of judgment will only lie for matters apparent on the face of the record. Case v. State, 5 Ind. 1.

The sufficiency of an indictment or information may be tested by a motion in arrest of judgment. Vogel v. State, 31 Ind. 64; Lindsey v. State, 72 Ind. 39; Hoover v. State, 110 Ind. 349.

A motion in arrest of judgment can only be made for want of jurisdiction and the

sufficiency of the indictment or information. Mullen v. State, 50 Ind. 169; Merrick v. State, 63 Ind. 327; Bright v. State, 90 Ind. 343; Bishop v. State, 50 Ind. 125. Jurisdiction of the court over the subject-matter may be raised by a motion in arrest of judgment. Reams v. State, 23 Ind. 111; Hutchinson v. State, 62 Ind. 556.

If the record does not show the impaneling of the grand jury or the return of the indictment, a motion in arrest of judgment will lie. Buckner v. State, 56 Ind. 207. See Padgett v. State, 103 Ind. 550.

Irregularity in selecting a grand jury is no cause for arresting a judgment. Meiers v. State, 56 Ind. 336; Miller v. State, 69 Ind. 284; Ford v. State, 112 Ind. 373.

A motion in arrest of judgment will raise the question as to the time of filing an information. Hoover v. State, 110 Ind. 349.

Uncertainty in pleading, or a defective statement of an offense, is no cause for arresting the judgment. Graeter v. State, 105 Ind. 271; Trout v. State, 107 Ind. 578; Stewart v. State, 113 Ind. 505; Nichols v. State, 127 Ind. 406.

Whatever is sufficient to arrest a judgment may be assigned as error on appeal. Burroughs v. State 72 Ind. 334.

The state can not move in arrest of judgment on a verdict of acquittal. Rousch, 60 Ind. 304.

State v.

1913. (1844.) Re-committal of defendant.-269. 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 re-committed or admitted to bail anew, to answer a new indictment or information.

Where a void verdict is returned, the judgment may be arrested and the defendant held for another trial. Wright v. State, 5 Ind. 527.

ARTICLE 19.-EXCEPTIONS

SEC.

1917. Contents of bill.
1918. Tender of bill.

SEC.

1914. May be taken.

1915. Appeal by state.

1916. Time for bill.

[1881 S., p. 114. In force September 19, 1881.]

1914. (1845.) May be taken.-270. On the trial of a criminal prosecution, exceptions may be taken by the defendant to any decision of the court upon a matter of law by which his substantial rights are prejudiced.

Exceptions to the failure of the court to instruct the jury must be taken before the jury retires. Murray v. State, 26 Ind. 141.

Exceptions must be taken to the ruling of the court in order to have the same reviewed by the supreme court. Hornberger v. State, 5 Ind. 300; Wheeler v. State, 8 Ind. 113; Mullinix v. State, 10 Ind. 5.

When the court has no jurisdiction of the subject-matter, a conviction will be set aside though no exception was taken. Lunning v. State, 9 Ind. 309.

Exceptions to instructions to the jury can only be taken by a bill of exceptions. Leverich v. State, 105 Ind. 277.

Excepting to the opinion of the court instead of to the decision will be sufficient. Pierce v. State, 109 Ind. 535.

1915. (1846.) Appeal by state.-271. The prosecuting attorney may except to any opinion 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 court below. 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 court below is decided to be erroneous, the appellee must pay the costs of the appeal.

When the state appeals the statute must be strictly complied with. State v. Bartlett, 9 Ind. 569.

The state can only appeal when the defendant is acquitted, and the record must show the fact. State v. Hamilton, 62 Ind. 409; State v. Hallowell, 91 Ind. 376.

The state may appeal from a judgment quashing an indictment, without a bill of exceptions. State v. Day, 52 Ind. 483.

An appeal can not be taken from a judgment quashing one count of an indictment while other counts are still pending. State v. Evansville, etc., Co., 107 Ind. 581.

If a defendant is discharged on a demurrer being overruled to a special plea, the state may appeal. State v. Daily, 6 Ind. 9.

The state can not by appeal question the sufficiency of the evidence to sustain the verdict. State v. Hall, 58 Ind. 512.

When the correctness of instructions depend upon the evidence the state can not question the correctness of the instructions. State v. Campbell, 67 Ind. 302; State v. Overholser, 69 Ind. 144.

If the state appeals from a refusal to give instructions there must be evidence showing applicability of such instructions. State v. Kern, 127 Ind. 465.

The state can not move in arrest of judgment and appeal from the overruling of such motion. State v. Rousch, 60 Ind, 304.

The indictment or information need not be made part of the record by bill of exceptions. State v. Vanderbilt, 116 Ind. 11.

The ruling of the court upon the point of law reserved must be assigned as error in the supreme court. State v. Ensey, 42 Ind. 480; State v. Van Valkenburg, 60 Ind. 302. When the appeal is sustained the costs of the appeal are taxed the appellee. State v. Tumey, 81 Ind. 559.

1916. (1847.) Time for bill.-272. All bills of exceptions, in a criminal prosecution, must be made out and presented to the judge at the time of the trial, or within such time thereafter as the judge may allow, not exceeding sixty days from the time judgment is rendered; and they must be signed by the judge and filed by the clerk. The exceptions must be taken at the time of the trial.

Exceptions must be taken during the trial, but time may be given to make out and file a bill of exceptions, such time not exceeding sixty days after judgment. Colee v. State, 75 Ind. 511; Bruce v. State, 87 Ind. 450; Hunter v. State, 102 Ind. 428; Marshall v. State, 123 Ind. 128; Van Dolsen v. State, 1 App. 108.

The granting of time to file a bill of exceptions must be given at or before the rendition of the judgment. Hunter v. State, 101 Ind. 406.

Until judgment is rendered, the power of the court to give time to file a bill of exceptions is not exhausted. Barnaby v. State, 106 Ind. 539.

The prosecuting attorney can not by agreement extend the time for filing bills of exception as fixed by law and the order of the court. Bartley v. State, 111 Ind. 358. The court can not grant more than sixty days after the rendition of judgment to file a bill of exceptions. Marshall v. State 123 Ind. 128.

A bill of exceptions may be filed at any time during the term at which the cause is tried without time being given. Calvert v. State, 91 Ind. 473; Fehn v. State, 3 App. 568. A defendant who flees to avoid the rendition of judgment can not obtain a bill of exceptions. Heath v. State, 101 Ind. 512.

The record must show that the bill was filed. Stewart v. State, 113 Ind. 505. The statements in the record as to filing a bill of exceptions can not be contradicted by an affidavit. Combs v. State, 75 Ind. 215.

The truth of a bill of exceptions can not be questioned, or attacked by affidavit. Beavers v. State, 58 Ind. 530.

1917. (1848.) Contents of bill.-273. The bills of exceptions must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken.

Evidence offered and excluded must be set out in a bill of exceptions in full, in order to have the supreme court consider its competency. Brown v. State, 70 Ind. 576. Papers not otherwise a part of the record must be made so by being copied into a bill of exceptions. State v. Cooper, 103 Ind. 75; Colee v. State, 75 Ind. 511; Norton v. State, 106 Ind. 163; Meredith v. State, 122 Ind. 514.

The provisions of the civil code as to taking exceptions to instructions, and making papers a part of the record by order of the court, do not apply to criminal actions. Meredith v. State, 122 Ind. 514; Leverich v. State, 105 Ind. 277; Van Dolsen v. State, 1 App. 108.

1918. (1849.) Tender of bill.-274. In cases where time is given beyond the term to the defendant to prepare the bill, as soon as such bill of exceptions is prepared by the defendant he shall tender it to the judge within the time prescribed, who shall indorse upon it the day of such tender, and such day shall, if within the time allowed by the court, be regarded as the day in which such bill of exceptions was signed and filed.

1919. (1850.) When pronounced.-275. After verdict of guilty, or finding of the court against the defendant, if the judgment be not arrested or a new trial granted, the court must pronounce judgment.

See section 1907.

As to what is a sufficient form of judgment, see Strong v. State, 57 Ind. 428.

A term of imprisonment can not be made to commence at the end of another term of imprisonment at some future period. Miller v. Allen, 11 Ind. 389.

The judgment must be in accordance with and follow the verdict. Clark v. State, 77 Ind. 399.

If a portion of the punishment assessed by the verdict is illegal, so dict may be disregarded and judgment entered on the legal portion. 60 Ind. 291.

much of the verVeatch v. State, Judgment need not be entered at once upon a plea of guilty, but evidence may be heard in aggravation or mitigation of the offense. Smith v. Hess, 91 Ind. 424.

When a plea of guilty is entered by an adult, he should not be released on parol, but he should be sentenced or held in custody or on bail for judgment. Gray v. State, 107 Ind. 177.

A judgment against persons jointly indicted should be several, and not joint. Sturgeon v. Gray, 96 Ind. 166.

1920. (1851.) Defendant to be present.-276. 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.

1921. (1852.) Defendant to be brought into court.-277. 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.

1922. (1853.) Warrant for arrest.-278. If in any case the defendant is 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.

This section is applicable to actions before justices of the peace, and the justice may issue a warrant for a defendant who is not present when required for the rendition of judgment. Sturgeon v. Gray, 96 Ind. 166.

If a defendant escapes after sentence, he may be retaken, identified and resentenced. State v. Wamire, 16 Ind. 357.

1923. (1854.) Defendant asked to show cause.-279. When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, and asked whether he have any legal cause to show why judgment should not be pronounced upon him.