291; 14 N. Y. 562; 12 Pick. 496; 7 R. I. 337; 31 N. J. L. 249; 30 Wis. 132; 37 id. 396. To separate, so that a juror may be improperly influenced, unless under permission of the court, is error-5 Cal. 275; and consent of defendant's counsel will not authorize it-id. The defendant need not show that the jury were subjected to improper influences during their separation; it is sufficient if they might have been-5 Cal. 275; 17 id. 78; 19 id. 445; see 8 Humph. 597; 7 N. H. 287; 4 Humph. 27; 9 id. 646; 3 Parker Cr. R. 25; 12 Ark. 782; 10 Yerg. 241; 3 Minn. 444; 16 id. 178; Dud. (Ga.) 28; 1 Kan. 340.

It is in the discretion of the court to allow the jury to view the premises in the absence of the defendant-19 Cal. 445; but a direct violation of the rule not to separate, is an irregularity which entitles defendant to a new trial, unless it is shown that he was not prejudiced-21 Cal. 337.

The presumption of prejudice to defendant from the unpremeditated separation of the jury, may be rebutted-22 Cal. 348. It ought to be shown that there has been a material or substantial violation of defendant's rights, or an opportunity for such violation-20 Cal. 432. It is not ground, under this subdivision, for setting aside a verdict, that jurors lifted up a fainting witness and retired with her, the deputy sheriff being present-17 Cal. 78. The retirement of the jury for a few moments for a necessary purpose, by permission of the sheriff, out of his sight, with proof that there was no communication with each other or any one else, is not a sufficient ground for a new trial-41 Cal.. 238.

Where the jury were left a short time unattended, no intrusion by other persons being shown, is not a ground for a new trial-46 Cal. 337; 25 La. An. 573. Where the jury, after they had retired for deliberation, were conducted to the dining-room of a hotel, where they remained together three quarters of an hour, one of the doors being open and accessible to strangers, and the officer being absent a few minutes at a time, it was held insufficient to constitute misconduct on the part of the jury or the officer, for which a new trial should be granted-46 Cal. 357. The fact that the officer, after the jury had retired, was absent some minutes, and that some person outside the jury-room spoke to the juror, and that some of the jurors spoke to persons outside, it not appearing what was said or that it had any reference to the trial; and the fact that after the jury had agreed on their verdict they were allowed to remain in the court-room in the presence of others while the officer went out, and waited some minutes for the judge, and it not appearing that there was any communication with the jury, are not sufficient grounds for a new trial-20 Cal. 435.

Improper conduct.-The presumption is that the jurors performed their duty in accordance with their oaths, and there must be direct and positive testimony to overthrow this presumption-24 Cal. 31. So, a new trial will not be granted because of vague opinions against the prisoner existing in the minds of several of the jurors-27 Cal. 507; 1 Dutch. 566; 18 Ga. 383; 17 N. H. 171; 2 Va. Cas. 474; 7 Watts & S.

422.

Where one of the jurors stated that if it was true the prisoner had committed the act charged, he ought to be hung, the objection, to be available, must be made before verdict-43 Cal. 137; 46 id. 114; overruling 9 Cal. 298. The remark of a juror during a recess of the trial that there is no use in taking up time in trying to humbug the jury, and the lawyer who made the shortest speech would win the case, is not such conduct as will vitiate the verdict-6 Cal. 228; but see 4 Humph. 289. The fact that after the verdict of guilty has been rendered, the accused ascertains for the first time that before the grand jury was impanneled a juror had formed and expressed an opinion as to his guilt, is not a ground for a new trial-46 Cal. 120; 43 id. 145.

Subd. 4. A juror cannot, by affidavit, impeach his own verdict-15 Cal. 70; 1 id. 403; 5 id. 42; id. 45; 25 id. 475; 15 id. 75; 1 id. 403; 48 id. 85; 5 Ark. 445; 4 Binn. 150; 8 Blackf. 101; 5 Conn. 348; 22 Gratt.924; 5 Ired. 401; 3 Ind. 167; 54 id. 339; 4 Johns. 487; 9 Kan. 119; 15 La. An. 557; 65 Me. 111; 4 Mass. 391; 39 Mo. 320; 65 id. 149; 66 id. 148; 23 N. H. 301; id. 321; 74 N. C. 46; 78 id. 560; 1 Parker Cr. R. 256; id. 262; id. 676; 2 id. 777; 1 Wend. 297; 9 Yerg. 408; 3 Tex. 31; 9 Ga. 121; but affidavits of jurors are admissible to explain, correct, or enforce their verdict-23 Cal. 40.

The affidavit of a juror cannot be admitted to purge his conduct from the imputation of impropriety-5 Cal. 275; 29 id. 257; 15 Ga. 223; 37 Mo. 240; 26 Miss. 78; 4 Vt. 363; but see 3 Me. 204; 6 Gratt. 219; nor is it admissible to prove that he had previously formed and expressed an opinion before the trial so as to justify a new trial-1 Cal. 403; see also 43 id. 146; overruling 9 Cal. 298. It will not be permitted to be shown that one or more of the jurors agreed to the verdict under the impression that the court, and not the law, fixed the punishment-17 Cal.76; nor that the verdict was arrived at by lot or chance-25 id. 460; 29 id. 257; see 20 Iowa, 19; 9 Kan. 718. The fact that after a verdict of guilty has been rendered, the accused ascertains for the first time that before the jury was impanneled a juror had formed and expressed an opinion as to his guilt, is not ground for a new trial-46 Cal. 120; 43 id.

145.

Subd. 5. Mistake in the admission or rejection of evidence is a ground for new trial, if objection was duly taken at the trial-49 Cal. 32; 33 Ga. 4; 39 id. 708; 3 Heisk. 76. Immaterial testimony, which does not in any manner prejudice defendant, is no ground of error-6 Pac. C. L. J. 208. A verdict will not be set aside because improper evidence was admitted, if no objection to its admission was made at the trial-48 Cal. 277; 33 Ga. 4; 39 id. 708; 3 Heisk. 376. Error in the disallowance of a challenge to a juror is a ground for new trial-40 Cal. 268.

A new trial will not be granted on account of the exclusion of particular evidence, when the objection to such evidence is withdrawn after its exclusion, and the defendant had an opportunity to offer it28 Cal. 468; 63 N. C. 33; 19 N. Y. 549. Where a witness was withdrawn before testifying, the fact that her appearance of the stand was calculated to excite the sympathies of the jury, is no ground for a new trial-21 Cal. 261.

After acquittal of defendant, there can in general be no new trial, though the result be produced by error of law or misconception of fact-38 Cal. 467; 40 id. 613; 2 Blackf. 5; 2 Brev. 126; 6 Grant Cas. 66; 13 Mass. 245; 19 Mo. 683; 71 N. C. 263; 3 Smedes & M. 751; 2 Sum. 20; 10 R. I. 494; 1 Spenc. 115; 9 Yerg. 333. Where the testimony is relevant, but its logical and legal effect is misdirected to the prejudice of the defendant, mainly due to the course adopted by the prosecution, a new trial will be granted-36 Cal. 255. To entitle a defendant to a new trial, the erroneous proceeding or instruction must have caused injury to him-11 Conn. 415; 14 Ga. 55; 23 Vt. 551; 7 Wend. 417; 37 Conn. 355.

Where instructions are contradictory on a material point, there should be a new trial-44 Cal. 69; 30 id. 316; 39 id. 577; 43 id. 552; 11 id. 161; 1 id. 354. See ante, § 1127, note. It is not such irregularity as to authorize a new trial, for a judge, other than the one who tried the case by consent, to charge the jury and receive the verdict-28 Cal. 471; nor is it such error for the judge of the district to resume his seat and pass on the motion without objection-id. An erroneous order may be set aside by the court of its own motion-44 Cal. 33.

Subd. 6. Where the motion is based on the ground of insufficiency of evidence to sustain the verdict, all the evidence on the trial must be contained in the record-43 Cal. 177; id. 55; see 2 id. 484. If the verdict be set aside on the ground that it is contrary to the evidence, and an appeal be taken from the order, the record must show what

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.

§ 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. 280; 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