the evidence was, or the question as to the sufficiency or insufficiency of the evidence cannot be considered-43 Cal. 56. The want of evidence must not only be apparent, but there must be such strong evidence against the yerdict as to produce the inference that it was rendered under the influence of passion or prejudice, or other bias21 Cal. 400. A verdict will not be disturbed unless there is such want of evidence or preponderance against it as to warrant it-10 Cal. 301. The defendant may move for a new trial on the ground of preponderance of evidence in his favor upon some issue material to the prosecution to establish-47 Cal. 100. When the motion is made on the ground that the verdict is against the evidence, it is heard as though brought on for hearing immediately after the rendition of the verdict, and neither statements nor reporter's notes are required to be filed in its support-51 Cal. 322. If it is claimed that the evidence is not sufficient to support the verdict, where defendant appeals and material evidence introduced by the plaintiff is left out of the record, the appellate court will not grant a new trial-49 Cal. 428. The verdict will not be disturbed on the ground that the evidence does not justify it, if the evidence is conflicting-45 Cal. 286. If there be conflicting evidence on both sides, and the question be one of doubt, the verdict will generally be permitted to stand-50 Cal. 304; 13 Ark. 694; 15 id. 624; 2 Bail. 291; 1 Blackf. 395; 33 Ga. 24; id. 98; 55 id. 47; id. 556; 4 Ind. 540; 45 id. 157; 3 Iowa, 339; 15 id. 72; 3 Humph. 289; 10 id. 144; 3 Kan. 450; 37 Mo. 343; 49 id. 282; 4 Neb. 68; 7 Watts & S. 415; 4 Yerg. 152. See ante, § 1156. Subd. 7. A new trial will not be granted on the ground of newlydiscovered evidence, which is in conflict with the evidence given on the trial-45 Cal. 148. Newly-discovered evidence, cumulative in its character, is not sufficient ground for a new trial-47 Cal. 138; 45 Barb. 201; 3 Ga. 310; 6 id. 276; 2 Ashm. 41; id. 69; 7 Watts & S. 415; or, if it would only impeach the evidence of a witness on a former trial, it is not sufficient grounds-2 Ind. 608; 13 Ga. 513; 31 id. 110; 39 id. 718; 5 Mass. 261; 14 Mo. 348; Charlt. R. M. 505; 7 Tex. 69. The evidence offered must be material, and not merely cumulative and corroborative, or collateral-47 Cal. 134; 2 Ashm. 69; 15 Ark. 395; 17 id. 404; 45 Barb. 201; 31 Ga. 411; 39 id. 718; 54 id. 303; 47 Ill. 376; 20 Mo. 425; 26 id. 306; 65 id. 574; 67 id. 59; 8 Neb. 406; 7 Watts & S. 415; Walk. Ch. 7; 36 Tex. 642. On the motion for a new trial the evidence in question must be specified, and the name of the witness be stated-41 Cal. 645; 28 Ark. 121; 37 Ind. 533; 14 Kan. 135. When newly-discovered evidence is the ground of the motion, the circumstances should be stated to show its materiality and admissibility-43 Cal. 168. A motion on this ground should not be granted without a satisfactory showing of diligence-53 Cal. 741; 6 Pac. C. L. J. 938. 1182. The application for a new trial must be made before judgment. § 1186. Court may arrest judgment without motion. § 1187. Effect of arresting judgment. 1188. Defendant, when to be held or discharged. 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 or information mentioned in section one thousand and four, unless the objection has been waived by a failure to demur, and must be made before or at the time the defendant is called for judgment. [In effect April 9th, 1880.] Arrest of judgment.-A motion in arrest of judgment is a proceeding on behalf of a prisoner, after verdict, and before sentence and judgment, for error appearing on the face of the record-43 N. Y. 28. An application for an order is made viva voce. Making out and filing a written application is not sufficient. The attention of the court must be called to it, and the court be moved to grant it-41 Cal. 650. The motion must be founded on some of the defects mentioned in $1004-48 Cal. 559; id. 253. It may be made on any of the grounds of demurrer, and the action thereon had may be reviewed on appeal39 Cal. 370. See ante, § 960. When the statute enumerates the grounds upon which judgment may be arrested, all others are excluded-43 Cal. Î37; 24 id. 230. It can only be entertained for matter apparent upon an inspection of the record-9 Ga. 58; 38 Me. 592; 49 id. 588; and formal defects, not affecting material rights, do not authorize an arrest of judgment-37 Cal. 250; as, the verdict cures informalities in the indictment-49 id. 388; 29 Pa. St. 441; 20 Pick. 356; 3 Hill, (S. C.) 1; 6 Tex. Ct. App. 485. A motion in arrest of judgment, based on defects in the indictment, must specifically set out the defects, to entitle the point to consideration in the Supreme Court-37 Cal. 277. See ante, $1004. If the indictment contains one good count, the overruling of the demurrer is not error-6 Pac. C. L. J. 610. If the defendant fails to demur, he cannot move an arrest of judgment on the ground that the indictment does not conform to the provisions of this Code-49 Cal. 390. If the indictment charges any offense, as an assault, the court cannot arrest the judgment, on the ground that the facts stated in the indictment do not constitute a public offense, even if judgment is pronounced for a higher offense-49 Cal. 390. If the objection, that more than one of fense is charged, is not taken by demurrer, it cannot be considered on arrest of judgment-27 Cal. 403. An indictment which charges that defendant was in the county where it was found, and then and there feloniously burned a building, sufficiently shows that the offense was committed at a place within the jurisdiction-44 Cal. 495. A variance in the name of the insurance company, given in the indictment for arson, is not a ground for arrest of judgment-29 Cal. 257; 32 id. 165. An order granting a motion in arrest of judgment, on account of alleged defects in the indictment, after judgment, is not appealable-44 Cal. 384; see 42 id. 625. It is not limited to the indictment, but may be made upon the whole record-6 Parker Cr. R. 657. The judgment cannot be sustained where defendant had not been arraigned-44 Cal. 542. Where there was no plea and no issue to try, there can be no judgment-44 Cal.,542. If the offense is not committed in the county where the indictment is found, the court should, on its own motion, arrest the judgment-27 Cal. 340; but where the acts are committed partly in one county and partly in another, and are one transaction, it is otherwise-39 Cal. 405. If a committing magistrate promises a person that, if he will become a witness for the people against others, he shall be acquitted, and induced by such persuasion he testifies and implicates himself and is afterward indicted, these facts do not furnish ground for arrest of judgment-48 Cal. 251. 1186. The court may also, on its own view of any of these defects, arrest the judgment without motion. Court may arrest judgment.-A court may, of its own motion, or upon application of a party interested, modify or set aside an erroneous order; so the court may, upon its own view of fatal defects in the indictment, arrest the judgment without motion-44 Cal.34. Where it is manifest that the offense of the accessory was committed in another county than that where the indictment was found, the court should arrest the judgment on its own motion-27 Cal. 341. 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 or information filed. [In effect April 9th, 1880.] Effect of arrest of judgment.-The effect of the order to arrest judgment is to place the defendant, as nearly as other and controlling rules of law will permit, in the same situation as he was before indictment-44 Cal. 34. And upon its entry he must be discharged, unless he is detained by virtue of other legal process or orders-44 Cal. 34. 1188. 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 indictment 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. [In effect April 9th, 1880.] Discharge of defendant. The defendant cannot be discharged from the indictment without trial, except in the cases provided by statute -48 Cal. 253. If from the evidence there is reason to believe the defendant guilty, and a new indictment can be framed, the court may order him to be recommitted to the officers of the proper county, or admitted to bail to answer the new indictment-44 Cal. 34. Where a verdict was received and recorded by the clerk, and the court then directed the jury to retire in custody of the sheriff, and amend their verdict to conform to the phraseology of the law, it is mere error to be corrected on appeal, and does not render the judgment void so as to warrant a discharge on habeas corpus-44 Cal. 35; 6 id. 562; 30 id. 214. See post, § 1485. |