no authority to speak to jurors, except to ask them if they have agreed on a verdict, unless by order of the court. He should not, in any case, be allowed to be present with the jury during its deliberation. His presence, though he does not speak to the jury and though he does not appear to have caused any injury, is sufficient to vitiate the verdict returned; Rickard v. State, 74-278.

2. Ordinarily, the mere presence of the jury bailiff in the jury room during deliberation on the verdict, shown by affidavit, is such misconduct of the jury as will constitute good cause for new trial. Where, however, such misconduct is explained and qualified, by counter affidavits to show that defendant was not injured or harmed thereby, and the trial court so decides, the supreme court will not reverse the judgment, on account thereof; Doles v. State, 97-562, explaining Rickard v. State, 74-275.

3. An affidavit, filed in support of a motion for new trial on account of misconduct of the jury in permitting the bailiff to be present during deliberation, stating "that the bailiff told the affiant that he was in the jury room the greater part of the time, while the jury was in consultation ", is insufficient to prove that the bailiff was in the room, as alleged; M'Clary v. State, 75-265.

1829. Verdict - Polling jury. The reception of a verdict is a judicial act and judicial power can not be delegated. The reception of a verdict by an attorney, designated by the court by consent of the party. to receive it is a nullity. The consent of defendant can not vest such judicial authority in the person selected to receive the verdict; M'Clure v. State, 77-289.

2. Although the statute, requiring that the names of the jurors must be called, is mandatory in form and although such provision should be strictly complied with, yet, the omission to call such names is not a material or fatal error, unless it further appears that the jurors did not, in fact, all appear at the time their verdict was rendered in open court; Norton v. State, 106–165.

1832. Jury discharged. The parties objecting to the discharge of the jury, which is unable to agree, the court gave additional and legal instructions, in presence of the parties and sent the jury back, further, to deliberate. No error; Hogg v. State, 7-551.

1833. Minor's imprisonment. Where the conviction is of the highest offense charged, in aid of the verdict the presumption of defendant's full age will be deemed met and overcome by the counter proposition of minority, afforded by this section, and the presumptions in favor of the action of the jury and court pronouncing the judgment; Rose v. State, 82-346.

1834. Verdict in case of different degrees. On an indictment for murder in the first or second degree, defendant may be convicted of manslaughter (Carrick v. State, 18-409; Dukes v. State, 11-557; Moon v. State, 3-438). Whether the manslaughter be voluntary or involuntary can make no difference in the application of the rule; Powers v. State, 87-155.

1835. One offense included in another. fendant may, if the evidence warrant it, be and battery; State v. Fisher, 103–532.

Indictment for malicious mayhem. Deconvicted of simple mayhem or assault

1836. Effect of conviction or acquittal. There is no such thing known to the faw as granting the state a new trial, where there has been a trial and acquittal belore a court of competent jurisdiction; State v. Newkirk, 80-132.

1837. Verdict. The jury must assess the punishment of one found guilty and the judgment of the court must follow the verdict. If the punishment assessed by the jury does not conform to the statute the court should see to it that the jury corrects its verdict; but, the court is not authorized to render judgment for any other, or different, punishment than that assessed by the jury; Clark v. State, 77-400.

1838. Judgment. An appeal may be taken, by the state, from a judgment quash. ing an information. It does not, necessarily, follow that defendant must be discharged to make a judgment quashing an indictment or information complete as a final judgment; he may be detained for further proceedings against him; State v. Allen, 94-442.

1839. Acquittal. Judgment, the defendant moves to quash the indictment herein, which motion the court sustains and said defendant is discharged", is informal. It is a good judgment, however, ending the prosecution and discharging the defendant; Lytton v. Baird, 95–359.

1842. Causes

ARTICLE 17-NEW TRIAL.

-Motion when. In a criminal case, a motion for new trial must be made before judgment; Sturm v. State, 74-280; Willis v. State, 62-391; Romaine v. State, 7-63 (abrogated by this statute).

2. By the provisions of this section, a motion for new trial may be filed after judgment, during the term at which it was rendered; Calvert v. State, 91473. It is within the discretion of the trial court, during the term, to entertain a supplemental motion for new trial and, in any case of felony, involving the life or liberty of the defendant such motion, when founded on matters, occurring after final judgment, bearing strongly on the guilt or innocence of defendant and supported by affidavit, should be heard; Dennis v. State, 103–147.

3. A new trial can not be granted where there has been a trial and acquittal, of defendant, before a court of competent jurisdiction. There is no such thing known in the law; State v. Newkirk, 80–132.

4. The improper refusal of a continuance is not one of the causes for which new trial can be granted. It must be the subject of an independent assignment of error, on appeal; Sturm v. State, 74-282.

5. Where the trial court refuses to permit "additional causes for new trial, supported by affidavits", to be filed after motion for new trial has been overruled, no error is shown, on appeal, the record failing to show what the additional causes were or what the affidavit contained, or purported to contain, or why such causes were not stated in the original motion; Harrington v. State, 76–115.

6. Affidavits in support of a motion for new trial do not become parts of the record by being copied into the record, as a part of the motion for new trial; Mountjoy v. State, 78-175.

7. It is the province of nisi prius courts to regulate the course of business, during the progress of trials and, during the term, to control their own sittings. Requiring counsel to make a night argument, over a request for a postponement until the morning, unless it be shown that the rights of the accused were thereby affected, is not an available question, on appeal; Wartena v. State, 105-447.

8. Misconduct of counsel in argument, to be available for the reversal of the judg ment, must be of such a character as to injure the substantial rights of defendant; Shular o. State, 105-300.

9. It is the duty of the court to control and direct the argument of counsel. Where the prosecuting attorney is permitted, over objection, to comment on the personal appearance of defendant, not as a witness nor on account of his manner and bearing as such, but as indicating a probability of guilt, or to refer to a particular juror as having become prejudiced in the case, it is such error as will reverse the judgment; Bessette v. State, 101-88.

10. Such misconduct of counsel for the state will not justify a reversal of judgment, on appeal, when considered in connection with interruptive denials of counsel for the accused and the prompt disapproval of the court; Epps v. State, 102-550.

11. Prosecution for selling intoxicating liquors to one who was in a state of intoxication. The prosecuting attorney, in addressing the jury, stated, among other things of doubtful propriety, that he knew, personally, the saloon keeper in this case and that he was guilty of this and, he was sure, of other crimes. It is error for the court, on request, to fail to instruct the jury to disregard such improper remarks; Brow v. State, 103-136.

12. For a prosecuting attorney, in argument, to state that he has personal knowledge of the fact that defendant is reputed to be a hotel thief and that he has been published and portrayed in the Police Gazette as such, is misconduct; Heyl v. State, 109-595.

13. It is not cause for new trial that the prosecuting attorney made an illogical argument or a mis-statement of the law. If the argument goes beyond the evidence objection must be made at the time and specific grounds of objection stated. The proper practice is for defendant, by his counsel, to move the court to restrain the prosecutor, or to have any mis statement withdrawn or corrected; Morrison v. State, 76–338, 311.

14. A trial under indictment, or information, without plea is such an irregularity as entitles defendant to new trial, if the verdict be against him, or, at his option, to have the verdict set aside as contrary to law. Advantage, however, can be taken of

such defect only in a proceeding by motion for new trial; Shoffner v. State, 93-520; see Tindale v. State, 71-314. In the absence of such motion no question is reserved in the trial court upon the question of arraignment vel non, or the waiver thereof, or upon the failure of the court to require a plea; Shoffner v. State, 93-520.

15. Jurors who separate in obedience to the direction of the court and under its instructions are not guilty of misconduct; Henning v. State, 106–399.

16. Their misconduct by separating without leave of court is not properly assignable as an independent error, on appeal; Clayton v. State, 102–203.

17. When a juror, during the deliberation, leaves the jury room, temporarily, for a necessary purpose, attended by a proper officer, the others suspending their deliberation until his return, it can not be considered as a separation of the jury or misconduct of the juror so leaving. Where, however, jurors leave their fellows at will, without leave of court and without being attended by an officer and pass out, by or among other persons, so that it is possible for them to be tampered with, or subjected to improper influences, it must be held to be a separation of the jury within the meaning of the second clause of this section; Riley v. State, 95-449.

18. Defendant and his counsel, even in a capital case, having knowledge that the court has permitted the jury to separate during the progress of the trial and before the case is finally submitted and making no objection until afterward are deemed to have waived the right to object; Henning v. State, 106-392.

19. Where it is shown that the jury has received and considered any evidence, paper or document not authorized by the court, such misconduct will constitute sufficient cause for new trial; Jones v. State, 89-85. As, where the jury, without consent of the parties, after retiring to deliberate, requested and received a volume of treatise on criminal law from which counsel had read during his argument; Newkirk v. State, 27-1.

20. It is not error to permit the jury to take to its room an annotated copy of the revised statutes and to read therefrom, while deliberating on a verdict, the section of the statute defining the offense for which the defendant is prosecuted, the annotations thereto consisting merely of the titles of decided cases, Mulreed v. State, 10767.

21. Two jurors, over the objection of defendant and after the court told them they must not do so, persisted in writing down notes of the evidence. Judgment reversed; Nichols . State, 65-212; see Cheek v. State, 35-492. Where, however, a juror takes such notes and reads them in the jury room, no objection being made, the facts are not available as cause for new trial, save that it appears that neither defendant nor his attorney were aware that the juror took the notes; Long v. State, 95-484.

22. Where jurors have received and considered evidence, paper or document not authorized by the court, the affidavits of jurors are not admissible to impeach the verdict. They are, however, competent to show that the jurors had not, in fact, been guilty of the misconduct alleged against them, in order to sustain the verdict; Jones v. State, 89-85; see Stanley . Sutherland, 54-339; Withers v. Fiscus, 40-131; Haun. Wilson, 28-296.

23. Where there has been misconduct of jurors, it is error to refuse a new trial unless it clearly appears (1) that the offending jurors were not influenced adversely to defendant, or in any respect rendered less capable; and (2) that the verdict clearly appears to be right on the evidence. A reasonable doubt, on either one of these questions, entitles to a new trial and the burden of removing the suspicion is on the prosecution; Riley v. State, 95-450.

24 That one juror, on the trial of an indictment, was a bailiff of the grand jury which returned it and was accepted as a juror without the knowledge of such fact until after verdict is not ground for new trial, unless it be made to appear that, while acting as such bailiff, he was present during the deliberation of such grand jury, or was otherwise disqualified; Spittorf v. State, 108-172.

25. The mere falling asleep, for a short time, by a juror, during the argument of counsel for defendant, does not per se constitute a sufficient cause for new trial; M'Clary v. State, 75-265.

26. Ordinarily, the mere presence of the jury bailiff in the jury room during the deliberation as to the verdict, is such misconduct of the jury as will constitute good pause for new trial. Where, however, such misconduct is explained and qualified, by counter affidavits, to show that the defendant was not injured or harmed thereby and the trial court so decides, the supreme court will not reverse the judgment on account thereof; Doles v. State, 97-562, explaining Rickard v. State, 74-275.

27. An affidavit, in support of a motion for new trial on account of the miscon duct of the jury in permitting its bailiff to be present during the deliberation, stating "that the bailiff told the affiant that he was in the jury room, the greater portion of the time, while the jury was in consultation" is insufficient to prove that the bailiff was in the room, as alleged; M'Clary v. State, 75-265.

28. Affidavits, in support of a charge of misconduct of a juror, which contain incompetent evidence are properly excluded; Presser v. State, 77–279.

29. Where the trial court hears evidence on a question of the misconduct of the jury its decision, on that question, will not be disturbed, by the supreme court, on what may seem to be the weight of evidence; Epps v. State, 102-556.

30. Where misconduct of the jury is assigned as cause for new trial and affidavits and counter affidavits are filed and evidence is heard, but, on appeal, only the affidavits in support of the motion are in the record the question will not be considered; Shular v. State, 105-305.

31. Where the court sufficiently instructs the jury as to what is necessary to make out the crime charged, and is not asked to and does not instruct as to the lesser offenses, of which defendant may be convicted, no error is committed of which defendant has reason to complain; M'Clary v. State, 75–266.

32. Prosecution for the unlawful sale of intoxicating liquor, to a certain person, on a certain Sunday. Defendant has no right to be surprised at the evidence of such person tending to prove such sale. Such surprise where no diligence whatever is shown is not sufficient cause for new trial; Morel v. State, 89-280.

33. An assignment of error, as a cause for new trial, that the finding of the court is contrary to law is sufficient to prevent the question that the trial was had without an arraignment or plea; Bowen v. State, 108-412.

34. An instruction asked of and refused by the court can not be made part of the record, by merely copying it in a motion for new trial; Adams v. Stringer, 78-180; M'Donald v. State, 74-214; Bates v. State, 72-434; Burnett v. Overton, 67–557.

35. Where the verdict finds defendant guilty of an act which, in the nature of things, he could not commit, which the law does not recognize as an offense and with the commission of which he is not charged, the verdict is contrary to law and a motion for new trial, for that cause, should be sustained; Thetge v. State, 83-128.

36. One can not be heard to complain, on appeal, that a judgment is contrary to law, when the record fails to show that he either objected or excepted to the form or substance of such judgment; Lindsay v. State, 82-10; see Mountjoy v. State, 78-172. 37. Where newly discovered evidence shows a strong probability of innocence, a new trial should be granted; ex. gr., where it is shown, by the testimony of the person injured, that he is convinced that the convicted party is not guilty; Morse c. State, 108-600. So, where a conviction for murder rested on the evidence of one jointly indicted with defendant, and a subsequent confession was made by such witness, destroying his previous testimony and differing widely from his prior confession and materially affecting the question of guilt; Dennis v. State, 103–149.

38. Prosecution for assault and battery with intent to murder. Evidence of threats made by the person injured, who attacked defendant, discovered after the trial, is cause for new trial; Leverich v. State, 105-279.

39. On motion for new trial, for newly discovered evidence, the moving party must show that he could not, by the exercise of reasonable diligence, have discovered and produced such evidence at the trial. The facts showing diligence must be stated; Skaggs v. State, 108-59.

40. New trials are not granted for newly discovered evidence unless it appears that such evidence would, probably, change the result on another trial; nor unless the party asking it shows that he used proper diligence; Presser r. State, 77–279.

41. In such case, if it is apparent, from the affidavit filed in support of the motion, that the only purpose is to contradict and impeach the testimony of a witness on the previous trial, there is no error in refusing to grant such new trial; Morel v. State, 89-279; Wall v. State, 80-146; Evans v. State, 67-68.

42. When newly discovered evidence is assigned as cause for new trial and is relied on for a reversal of the judgment, the record must contain the affidavits and counter affidavits in relation thereto, in order to raise any question on appeal; Myers v. State, 92-396. Such affidavits not being made of the record, by bill of exceptions or order of court, the alleged newly discovered evidence is not in the record and can not be considered for any purpose; Kleespies v. State, 106-385.

43. That the verdict of jury or the finding of court is contrary to law is cause for new

trial. Unless the record shows that such cause was assigned in the motion for new trial the overruling of such motion and an exception to such ruling, does not present the question on appeal; Lindsey v. State, 82-10.

44. Where defendants were found guilty of maintaining a public nuisance, as the owners, by descent, of a certain mill dam and there was a total failure of evidence to show that they, or either of them, had done any act in relation to or in connection with the dam new trial should be granted; Bruce v. State, 87-456.

ARTICLE 18- ARREST OF JUDGMENT.

1843. Causes. Where it is not shown, on appeal, that one of the causes for arresting the judgment exists in the case and the error, if any, of the court in overruling the motion in arrest is not discussed by appellant's counsel, the error, if any, will be deemed waived; Norton v. State, 106–164; Bybee v. State, 94-443.

2. The manner in which an indictment is signed by the prosecuting attorney is not presented by a motion in arrest. It need neither be considered nor decided; Knight v. State, 84-74.

3. The sufficiency of an affidavit and information may be tested by motion in arrest; Hoover v. State, 110-354.

4. A motion in arrest questions only the jurisdiction of the cause and the sufficiency of the indictment or affidavit and information; Shoffner v. State, 93-520; Bright v. State, 90-344; Stout v. State, 90-15. Wherefore, an assignment as cause therefor, that "the jury failed to find a verdict on the second count of the indictment and were discharged without the defendant's consent" is wholly unauthorized by statute and affords no ground for the arrest of the judgment. In no case does such motion call in question the sufficiency of the evidence to sustain the verdict; Bright v. State, 90344.

5. A motion in arrest should be sustained if the indictment be not returned in to open court and, on appeal, the record must, affirmatively, show that it was so returned; State v. Dixon, 97-125.

6. Where the statements of the indictment and the indorsements upon it and the copies of the entries show that the grand jury was duly impaneled and that the indictment was received by the court, in open session, error in the selection of the grand jury is not available on motion in arrest; Henning v. State, 106-388.

7. The whole information, taken together, showing that the charge of the offense is preferred by the prosecuting attorney, the use, by mistake, of the word affiant" in the body of the instrument, instead of the words "prosecuting attorney", is not a defect available on motion in arrest; Billings v. State, 107-57.

8. The second statutory cause for an arrest of judgment, presents no question as to the failure of the grand jury to return an indictment in to open ccurt; Padgett v. State, 103-552.

9. In an indictment or information the prenomen and cognomen of the accused must be stated in full, unless some reason be shown for not so stating it. A reason for not stating the name thus, or a failure to state it, may be taken advantage of on motion to quash. The court, however, on motion in arrest of a judgment, in the prosecution of defendant by the name of "Ben" will presume that to be his full prenomen; Burton v. State, 75-478.

ARTICLE 19-EXCEPTIONS.

1845. May be taken. The words "opinion and "decision" are used interchangeably in the statute (see sect. 1846). An exception to the opinion of the court, in overruling a motion for a new trial, instead of to its decision which is more technically accurate -suffices to present the question; Pierce v. State, 109–536.

1846. Appeal by state. During the prosecution, the prosecuting attorney may, by bill of exceptions, reserve any point of law for the decision of the supreme court. If defendant be acquitted the prosecuting attorney may, within one year, take the reserved case to the supreme court on appeal. There shall be no reversal of the judgment on such appeal, but the opinion of the supreme court shall be the uniform rule of decision in inferior courts and if the decision below is held to be erroneous the appellee must pay the costs of the appeal; State v. Tumey, 81-561.

1847. Time for bill. The word "trial ", as used in this section, was not used in its limited and restricted sense; but in a general sense. It includes all the steps