E. Polling the Jury.-The failure to poll a jury in a criminal case, is not cause to set aside its verdict. The poll is necessary only when asked for, and where there is no request, though it be because of absence of defendant's counsel, the poll is not necessary; in the absence of a poll the court will presume the verdict to be that of the whole jury. State vs. Atkinson, 104 La. 570.

A poll of the jury in a criminal case is not necessary when a request is not made therefor, and when a poll is had, it is not necessary that the names of the jurors voting for and against the verdict be noted in the minutes. State vs. Colomb, 108 La. 253.

F. Verdict not Affected by Juror's Belief of Penalty Legally Resulting Therefrom.— Mere belief on the part of one of the jurors who tried the accused, that the verdict found would, to some extent, leave the penalty to be imposed to the discretion of the court, and not necessarily carry with it a sentence of death, does not furnish a legal ground for reversing the verdict. State vs. Smith, 106 La. 735.

G.

Verdict as Affected by Intoxication of Juror.-One of the jurors being intoxicated, the jury is incompetent to render a verdict of conviction, though the vote was unanimous, and under the law only nine votes were required for the conviction for the offense with which the accused was charged. State vs. Ned, 105 La. 696.

H. Error in Ruling.- An error in ruling on a criminal trial will not suffice to set aside the verdict, where the error is immaterial and has not worked injury to the accused. State vs. Charles, 108 La. 230.

I. Impeachment of Verdict by Juror.-Affidavits of jurors are not admissible to impeach the verdict. State vs. Nelson, 32 An. 842; State vs. Price, 37 An. 215; State vs. Bird, 38 An. 497; State vs. Richmond, 42 An. 459. Nor is evidence of the reasons which influenced the jury to render the verdict admissible to impeach it. State vs. Wallman, 31 An. 146; State vs. Fruge, 28 An. 657; State vs. Beattie, 30 An. 1266.

Jurors are not permitted to impeach their own verdict, but they are competent to testify in rebuttal of charges of misconduct. State vs. Procella, 105 La. 510.

J. Waiver of Defects and Objections and Aider by Verdict.-The failure to aver the absence or recusation of the District Attorney in the information filed by the District Attorney pro tem, must be taken advantage of by motion to quash or demurrer, or it will be considered waived. State vs. Robacker, 31 An. 651. Any objection to an indictment for defect in form, apparent on its face, comes too late when made after the jury is sworn. State vs. Shay, 30 An. 114.

Objections to the manner of organizing a grand jury comes too late after trial. State vs. Watson, 31 An. 379. So also with insufficiency in the description of property stolen. State vs. Anderson, 42 An. 590.

Formal defects in an indictment and duplicity alleged therein, are cured by verdict. State vs. Scott, 48 An. 293; State vs. Clement, 42 An. 583.

"The rule is stringent that the defendant, if he does not interrogate as to the qualifications of the juror, cannot take advantage of the want of the necessary qualifications after verdict." State vs. Whitesides, 49 An. 352; citing State vs. Bird, 38 An. 497; State vs. Bower, 26 An. 383 and other earlier cases. "If the juror answers falsely, and this fact is afterward ascertained for the first time after verdict, this disqualification may be urged as grounds for a new trial. The fact of incompetency must be shown by other testimony than that of the juror." State vs. Whitesides, 49 An. 352; State vs. Nash & Barnett, 45 An. 1137.

The minority of one of the jurors will not avail to set aside the verdict, when

R. S. 1094 no objection was made or questions asked on that point when the juror was tendered and accepted by the accused. That neither the accused or his counsel were aware of the minority of the juror, does not affect the rule. State vs. Button, 50 An. 1071.

But where the juror's incompetency is only discovered after the trial, because he answered falsely when interrogated on his voir dire as to his having prejudged the case, the verdict will be set aside. State vs. Harper, 51 An. 163.

Where the jury is properly charged by the court, its verdict of guilty contemplates that the corpus delicti had been established, and the verdict cannot be reviewed on appeal. State vs. Vogel, 49 An. 1057. (The court, however, considered the evidence as, perhaps, "the question of fact" was "one blended with law'').

13. NEW TRIAL.

A. In General. The trial judge is vested with discretion to grant or refuse a new trial. State vs. Beck, 41 An. 584; State vs. Davis, 48 An. 727, and the appellate court will not reverse his ruling unless the discretion has been abused. State vs. Beaird, 34 An. 104; State vs. Ward, 43 An. 104. It is subject to review only in case of manifest error. State vs. Maxey et al., 107 La. 799; State vs. Benjamin, 105 La. 501.

The refusal to grant a new trial on the ground that the verdict is contrary to the law and the evidence, will not be disturbed on appeal, unless it is clearly erroneous. State vs. Underwood, 49 An. 1599.

"In his refusal to grant a new trial, and in his discipline of the court, in allowing time to file motions and to hear arguments in all matters referred to his sound discretion, we will not disturb the rulings, unless they are arbitrary and manifestly inflict or do a wrong to the defendant." State vs. Whitesides, 49 An. 352. But he cannot do so, ex proprio motu to one, against whom a verdict of guilty has been rendered. State vs. Williams, 38 An. 760.

B. Conduct, etc., of Jury-Objections to Charge. The discretion to grant or refuse extends to motions for a new trial on the ground of newly discovered evidence. State vs. Washington, 36 An. 341; State vs. Dunn, 41 An. 610; State vs. Jones, 46 An. 545.

A verdict will not be set aside because a juror took a memorandum of part of the testimony of some of the witnesses for the State, where it appears that he destroyed the memorandum without making use of it himself and without showing it to the other jurors. State vs. Joseph, 45 An. 903. Nor will a new trial be granted because the jury had in its possession through an accident, the written testimony taken at the inquest, where it is not shown that it was read, or that it in anyway worked harm to the defendant. State vs. Harris, 34 An. 118. Nor because the jury had intoxicating liquors in its possession, where it is not shown that any harm resulted therefrom. State vs. Dorsey, 40 An. 739; State vs. Bellow, 42 An. 586; State vs. Broussard, 41 An. 81; State vs. Dunarest, Ibid. 654. Nor that a juror was out of the presence of the officer for a moment. State vs. Turner, 25 An. 573, or that they, some of the jurors, slept apart from the others. State vs. Richmond, 42 An. 299. See also State vs. Bellow, 42 An. 586; State vs. Magee, 48 An. 901; State vs. Fouroce, 24 An. 191; State vs. Johnson, 30 An. 921.

The proof must be clear that there was such a separation as would work injuriously to the defendant. State vs. Garig, 43 An. 365.

"The separation of the jury, as disclosed by the testimony, is fatal to the prosecution.'' State vs. Warren, 43 An. 828; State vs. Foster, 45 An. 1176; State vs. Moss, 47 An. 1514. "There were opportunities for members of the jury remaining upstairs to communicate with persons in the court building. The

jurors were accessible, and misconduct is presumed. State vs. Moss, 47 An. 1515, but see State vs. Dorsey, 40 An. 739; State vs. Dallas, 35 An. 580. The receipt of a letter by a juror and the reading of it, is not cause for a new trial, where it appears that it had nothing to do with the case. State vs. Magee, 48 An. 901. See State vs. Cady, 46 An. 1346.

An objection that the grand jury which found the indictment was not properly drawn, comes too late after verdict. State vs Washington, 33 An. 896. Or that a grand juror was disqualified. State vs. Griffin, 38 An. 502, so with objection to the form of oath administered to the jury. A new trial will not be granted because the officer who swore the jurors and witnesses was disqualified to do so. State vs. Dreyfus, 38 An. 877, or because counsel for defendant failed to argue the case, under the belief that the jury, which had stated that it did not wish to hear argument, would find a verdict for defendant. State vs. Fontenot, 48 An. 220; or that the jury misapprehended the charge of the judge, unless objection was made at the time, even if the motion is supported by an affidavit of one of the jurors. State vs. Bates, 38 An. 491; or that the jury disregarded the facts; State vs. Ware, 43 An. 400.

A motion for a new trial is properly overruled where the grounds upon which it is based is the alleged statement by a juror to a witness on the trial of the motion, that he, the juror, would not have acquiesced in the verdict but for fear of losing his job or employment. The evidence was properly refused as hearsay, and as being inadmissible, because the juror himself could not be heard to impeach his verdict. State vs. Corcoran, 50 An. 453.

The testimony of a juror will not be received to impeach his verdict, but when the verdict is assailed on a motion for a new trial, the juror is properly heard to contradict the charge that before the trial he had made use of some expression which unfitted him to sit on the case. State vs. Favre, 51 An. 434. (The authorities in other States are cited in the opinion). State vs. Wimberly, 50 An. 1330.

Objections to a charge to the jury, urged for the first time on motion for a new trial, will not be considered in the Supreme Court. State vs. Weston, 107 La. 45. They must be urged before the jury retires, and cannot be urged afterward. State vs. Ryan, 30 An. 1176; State vs. West, 45 An. 928; State vs. Walker, 39 An. 19.

Objection to the charge of the judge not excepted to when delivered comes too late on a motion for a new trial. State vs. Wright, 104 La. 44. An exception is made in capital cases. In such cases the failure of the judge to charge the jury as to the various verdicts it may render, may be urged on a motion for a new trial, though not excepted to at the time the charge was given. State vs. Brown, 40 An. 725; vs. Obregon, 10 An. 799; vs. Brown, 41 An. 710; vs. Jones, 46 An. 1395; vs. Thomas, 50 An. 148. But a new trial should be granted, where the non-age of the juror, and defendant's ignorance of it, are conclusively shown. State vs. Nash, 45 An.

1137.

C. Newly Discovered Evidence, etc.- A motion for a new trial must disclose the alleged newly discovered evidence or the source from which it is derived. State vs. Curtis, 30 An. 814. The affidavit of the newly discovered witnesses must be annexed to the motion; the statements that they are within the jurisdiction of the court is not sufficient. State vs. Valsin, 47 An. 115; State vs. Adam, 31 An. 717, and where it is proposed to show the insanity of the defendant, by the newly discovered evidence, this must be shown by evidence tending to substantiate the allegation. State vs. Hebert, 39 An. 319.

An affidavit that the defendant was drunk when he committed the offense, is not a statement of newly discovered evidence for which a new trial will be granted. State vs. White, 33 An. 1218. Nor is evidence of a former acquittal.

R. S. 1094 State vs. Bales, 38 An. 491. Or that defendant was surprised at the reception of certain evidence which was not objected to. State vs. Perkins, 40 An. 210; State vs. Chambers, 43 An. 1198, or that since the trial the defendant had found, that evidence of which he had knowledge, was more important than he had supposed. State vs. Anderson, 35 An. 991. Nor will a new trial be granted where due diligence to discover the evidence before trial is not shown, or the evidence is not so material as to probably produce a different result or is merely cumulative. State vs. Woodworth, 28 An. 89; State vs. Deskin, 35 An. 46; State vs. Hendrix, 45 An. 500; State vs. Hornsby, 8 Rob. 554. (This is a leading case and many points in criminal law are decided), and see State vs. Frisbic, 41 An. 615; and it is not "newly discovered evidence" where it appears that the witnesses were known, and being absent, no delay was asked, etc. State vs. Lamothe, 37 An. 48; and a new trial will not be granted for newly discovered evidence which would only discredit or impeach a witness who testified. State vs. Young, 34 An. 346; State vs. Fahey, 35 An. 9; State vs. Crenshaw, 45 An. 496; State vs. Williams, 38 An. 361. Nor when the object of the evidence is to discredit, by extra judicial statements, the testimony of witnesses given on the trial. State vs. Garig, 43 An. 365; State vs. Johnson, 30 An. 305, and the Supreme Court will not review his ruling as to the diligence displayed. State vs. White, 33 An. 1218; State vs. Jones, 46 An. 545.

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When the alleged newly discovered evidence is merely cumulative, a new trial is properly refused. State vs. Green, 49 An. 61; State vs. Jones, 46 An. 545. Surprise at the statement of a witness is not ground for a new trial where the judge informed counsel for the accused "that he was at liberty to introduce any other witness or testimony upon the same subject matter and he did not avail himself of that offer." Nor will a new trial be granted when "the proposed newly discovered evidence" is, in the opinion of the trial judge, "cumulative or corroborative," and the affidavit of the defendant is unsupported by the oath of the witness upon whom he relies. State vs. Hollier, 49 An. 371.

An application for time to frame, file affidavits and file a rule for a new trial is open to the objections to which the rule itself would be and is properly dismissed, where the affidavits offered in its support only alleged the discovery, since the trial, of material testimony, which would contradict the State's witnesses, and of an eye witness who would confirm the statements of the accused, without showing that the evidence could not be obtained before, though due diligence was exercised. State vs. Keaveny, 49 An. 667.

Merely cumulative evidence, and alleged recently discovered evidence tending to impeach a witness who has testified, is not ground for a new trial. State vs. Bailey, 50 An. 533. Where a District Judge, after a full trial, is satisfied that the testimony sought to be made the basis of a new trial would not, even if admitted, for various reasons assigned by him, alter the result, the Supreme Court is not warranted in reversing the District Judge in his refusal to grant a new trial, except in very clear cases. State vs. Prude, 50 An. 914. A motion for a new trial on the ground of newly discovered evidence was overruled by the trial judge who, in his reasons annexed to the bill of exception taken to the ruling, stated that the evidence was not newly discovered, and the accused had not used due diligence. Held, the uncontested statement of the judge will control. State vs. Ginton, 51 An. 155. Newly discovered evidence is not ground for a new trial, when the evidence is merely cumulative or is so weak that it is not likely to have changed the result. Nor will the refusal to grant a new trial be disturbed where, from the nature and relation of the witnesses to the accused persons and the length of time the indictment was pending, the claim of newly discovered evidence appears highly improbable. State vs. Lycune, 52 An. 463; State vs. Bailey, 50 An. 536. On a motion for a

new trial an accused cannot assign as newly discovered testimony, the statements of persons whom he had summoned, who were present at the trial and not called on to testify. This is particularly true, where the accused offered no testimony in his defense, relying entirely upon the weakness of that offered by the State. State vs. Joseph, 51 An. 1309. It is well settled by repeated decisions that a verdict will not be set aside, and a new trial granted to enable the defendant to impeach the testimony adduced on the trial. Motions for new trial are largely within the discretion of the trial judge. State vs. Venables, 40 An. 215; State vs. Spooner, 41 An. 780; State vs. Young, 34 An. 346; State vs. Fahey, 35 An. 9; State vs. Deskin, 35 An. 46; State vs. Burt, 41 An. 787; State vs. Garig, 43 An. 365; State vs. Ware, 43 An. 400; State vs. Chambers, 43 An. 1108; State vs. Maxey et al., 107 La. 799. Where the avowed object of newly discovered evidence is to discredit a witness for the prosecution, the general rule is that a new trial will not be granted. State vs. Mitchel and Young, 107 La. 618; State vs. Yancey and Barbo, 34 An. 346; State vs. Fahey, 35 An. 12; State vs. Deskan, 35 An. 48; State vs. Williams, 38 An. 361; State vs. Gauthereaux, 38 An. 608. It is not error to refuse a motion for a new trial on the ground of newly discovered evidence when the witnesses named on the trial of the motion fail to furnish such evidence. Nor is it error to overrule it on the ground of surprise, when no bill was reserved at the time of the alleged surprise. Nor is it error to overrule it on the ground that a witness had testified as an expert without qualifying as one, when no objection was made at the time, and the expert evidence, if any, was elicited in answer to questions put by defendant's counsel. State vs. McQueen, 108 La. 410.

The failure of defendant in a criminal case to introduce evidence within his control in his own behalf, because he did not think it was called for, is not ground for a new trial. State vs. Muller, 107 La. 796, nor when the evidence is cumulative, or where the evidence should have been discovered sooner. State vs. Moxey et al., 107 La. 799.

D. Refusal of Request to Address Jury in French.- Where the empancling of the jury, reading of the indictment, hearing of witnesses and all other proceedings up to the time where counsel for defendant is to address the jury have been in English, it is not error for the court to refuse leading counsel for the accused to address the jury in French, on the ground that it was the mother tongue of counsel, the jury and the judge a quo. State vs. Cancienne, 50 An. 1324.

E. Prejudice of Jury, etc.-Disregard of Oath as Affecting Verdict.— Where the evidence on a motion for a new trial shows that the jury rendered its verdict under conditions which implied a doubt of the sincerity, impartiality and correctness of the verdict, the refusal of a new trial will be reversed. State vs. Walls et al., 52 An. 1002. Any act of jurors indicating a disregard of the solemn duty imposed upon them and a disregard of the solemnity of their oaths, will be sufficient to avoid the verdict. State vs. White, 48 An. 1445; State vs. Walls et al., 52 An. 1002; State vs. Fourchy, 51 An. 251.

F. Miscellaneous.— Intoxication of a witness for the defense is not ground for a new trial. State vs. Casey, 44 An. 969. Or that witnesses who had been summoned were absent when a continuance had not been asked for. State vs. Simien, 36 An. 923, or that defendant was not served with a copy of the indictment and venire. The objection coming too late after the verdict. State vs. Beeder, 44 An. 1007; State vs. Taylor, 37 An. 40. So also where the court's rulings are given as the grounds, unless exceptions in proper form were taken thereto. State vs. Holcombe, 41 An. 1066, or because illegal and incompetent evidence was submitted (State vs. Magee, 48 An. 901), the defendant not being represented by counsel who had been offered to him. State vs. Bingham, 46