7. When new evidence shall have been discovered, material to the defendant and which he could not, with reasonable diligence, have discovered and produced at the trial.

When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all the circumstances of the case, may seem reasonable.

Cal. Pen. C. ? 1181*.

AFFIDAVIT IMPEACHING VERDICT. The affidavit of a juror that, during the progress of the trial, he took certain measurements of a locality testified to on the trial, and that he communicated the same to the other jurors, cannot be received to impeach the verdict. People v. Ritchie, 12 U. 180; 42 P. 209.

In a criminal case, affidavits of jurors will not be received to impeach or question their verdict, nor to show the grounds upon which it was rendered, nor to show their misunderstanding of facts or of law, nor that they misunderstood the charge of the court, nor the effect of their verdict, nor their opinions, surmises, and processes of reasoning in arriving at their verdict. People v. Flynn, 7 U. 378; 26 P. 1114.

PREJUDICIAL ERROR. An oral charge should be considered as a whole, each part of it as qualified by the other portions, and if, when so considered, it is not misleading, it is not erroneous. Snow, 4 U. 280; 9 P. 501. State v. McCoy, — U. 49 P. 420.

U. S. v.

Defendant cannot complain of the giving of an instruction asked by him. People v. Gough, 2 U. 70. As to instructions in particular cases see 24161.

Admission of incompetent testimony in criminal case is ground for reversal where it is apparent that undue importance may have been given to it by jury. People v. Biddlecome, 3 U. 208; 2 P. 194. But

[C. L. § 5094*.

otherwise where the evidence was ample to warrant the jury in returning a verdict in harmony with incompetent evidence; held, not to be prejudicial error. People v. Burtlesen, 14 U. 258; 47 P. 87. See 5012, as to evidence generally.

Remarks of court in ruling on evidence not directed to jury, not objected to or no correction asked, are not error merely because they might tend to prejudice jury against defendant. U. S. v. Peay, 5 U. 263; 14 P. 342.

Allusion which is immediately withdrawn by counsel in argument to the case having been tried before, is not prejudicial error hereunder. People v. Hopt, 4 U. 247; 9 P. 407; 120 U. S. 430.

SUFFICIENCY OF EVIDENCE. Verdict of guilty will not be set aside if evidence substantially supports it. Must be an absence of evidence against defendant or substantial, preponderance in his favor. People v. Clauson, 2 U. 502. People v. Swasey, 6 U. 93; 21 P. 400. U. S. v. Brown, 6 U. 115; 21 P. 461.

Will not reverse on conflicting evidence, no mistake or improper motive of jury appearing. People v. Chalmers, 5 U. 201; 14 P. 131. People v. Peacock, 5 U. 237; 14 P. 332. U. S. v. Harris, 5 U. 436; 17 P. 75.

NEWLY DISCOVERED EVIDENCE. Newly discovered evidence which is merely cumulative, there being no showing of proper diligence, will not justify granting new trial. People v. Peacock, 5 U. 237; 14 P. 332.

4953. Written notice of motion designating grounds. Time of filing. The application for a new trial must be made upon written notice of motion designating the grounds upon which it is made, and, if based upon any of the grounds mentioned in subdivisions two, three, four, and seven of the preceding section, must be filed and served within thirty days after the discovery of the facts upon which the party relies in support of his motion; and in all other cases, notice of motion must be filed within five days after the rendition of the verdict.

Mont. Pen. C. ? 2193; Cal. Pen. C. 1182*.

4954. Id. When based upon affidavits. Time of hearing. Stay. A motion for a new trial, if made for any of the causes mentioned in the first, second, third, fourth, and seventh subdivisions of section forty-nine hundred and fifty-two, must be based upon affidavits which must be filed at the same time as the notice of motion. The motion must be heard on the second day after the notice is filed, or as soon as practicable thereafter; and in all cases, if notice of motion is filed before judgment, the court may make an order staying further proceedings in the case until such motion is disposed of.

Mont. Pen. C. ? 2194*.

CHAPTER 41.

APPEALS.

4955. Either party may appeal. Method prescribed. Either party in a criminal action, may, except in cases appealed from a justice's court, appeal to the supreme court, as prescribed in this chapter. [C. L. § 5134*.

Cal. Pen. C. ? 1235*.

Appeals from district court, Con. art. 8, sec. 9.

4956. Title of action not changed on appeal. The party appealing shall be known as the appellant, and the adverse party as the respondent, but the title of the action shall not be changed in consequence of the appeal. § 5135.

Cal. Pen. C. 1236.

[C. L.

4957. From what defendant may appeal. An appeal may be taken by the defendant:

1. From a final judgment of conviction.

2. From an order made after judgment, affecting the substantial rights of the party. [C. L. § 5136.

Cal. Pen. C. ? 1237*.

Defendant shall have the right to appeal in all cases, Con. art. 1, sec. 12; art. 8, sec. 9.

NOT APPEALABLE. Orders resubmitting a case to grand jury after demurrer to indictment sustained, and refusing to discharge defendant pending such resubmission, are not appealable. People v. Hill, 3 U. 334; 3 P. 75.

A defend int charged with felony who is a fugitive from justice has no right to be heard upon appeal. People v. Tremayne, 3 U. 331; 3 P. 85.

Orders forfeiting a defendant's bail, refusing to set aside such forfeiture, and directing that money

deposited in lieu of bail be paid into the territorial treasury, are not appealable. Id.

Rulings on challenges for actual bias are conclusive and not reviewable on appeal. People v. Hopt, 4 U. 247; 9 P. 407; 120 U. S. 430.

Where a juror is challenged for actual bias, an issue of fact is raised, and if no exception is taken to the admission or rejection of evidence upon the voir dire examination, the action of the trial court is final and conclusive and cannot be reviewed on appeal. People v. Thiede, 11 U. 241; 39 P. 837; 159 U. S. 510.

4958. From what the state may appeal. An appeal may be taken by the state:

1. From a judgment for the defendant on a demurrer to the information or indictment.

2. From an order arresting judgment.

3. From an order made after judgment affecting the substantial rights of the state.

4.

From an order of the court directing the jury to find for the defendant. [C. L. § 5137.

N. Dak. (1895) 8329; Cal. Pen. C. ? 1238*.

4959. Appeal must be taken within six months. An appeal from a judgment or order must be taken within six months after its rendition. [C. L. § 5138*.

Cal. Pen. C. 1239*.

as to juror acting as interpreter. Thiede v. People, 159 U. S. 510.

People v. Thiede, 11 U. 241; 39 P. 837, affirmed 4960. Id. Taken by filing and serving notice. An appeal shall be taken by filing with the clerk of the court in which the judgment or order appealed from shall have been entered or filed, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party. [C. L. § 5139.

Cal. Pen. C. 1240.

An appeal in a criminal case is taken by filing the notice of appeal with the clerk of the court, and serving a copy thereof on the adverse party or his attorney. People v. Gough, 2 U. 69.

Where the record shows the filing of a notice of

appeal, but is silent as to its service, affidavits will not be received in the supreme court to show that the notice of appeal was in fact served upon the adverse party. People v. Gough, 2 U. 69. People v. Fennel, 4 U. 112; 7 P. 525, 648.

4961. Id. Service of notice by publication. If personal service of the notice cannot be made, the judge of the court in which the action was tried,

upon proof thereof, may make an order for the publication of the notice in some newspaper for a period not exceeding thirty days. Such publication shall be equivalent to personal service. [C. L. § 5140.

Cal. Pen. C. ? 1241.

4962. Appeal by state. Effect. An appeal taken by the state in no case shall stay or affect the operation of a judgment in favor of the defendant until judgment is reversed. [C. L. § 5141.

Cal. Pen. C. 1242.

4963. Appeal does not stay execution, unless certificate issued. An appeal to the supreme court from a judgment of conviction shall stay the execution of the judgment upon filing with the clerk of the court in which the conviction shall have been had, a certificate of the judge of such court, or of a justice of the supreme court, that in his opinion there is probable cause for the appeal, but not otherwise. [C. L. § 5142.

Cal. Pen. C. ? 1243*.

Bail on appeal, 24987-4991, 5000.

The supreme court has no authority to order a stay in a capital case pending hearing of a writ of

error from the supreme court of the United States the sentence of the lower court having been affirmed by the supreme court of the territory. People v. Hopt, 3 U. 404; 5 P. 565. Same case, 104 U. S. 631.

4964. Id. Duty of sheriff if certificate filed. If the certificate provided for in the preceding section is filed, the sheriff must, if the defendant be in his custody, upon being served with a copy thereof, keep the defendant in his custody without executing the judgment and detain him to abide the judgment on appeal. [C. L. § 5143.

Cal. Pen. C. ? 1244.

4965. Id. Suspension of execution, if begun. If, before the granting of the certificate, the execution of the judgment shall have commenced, the further execution, thereof shall be suspended, and upon service of a copy of such certificate the defendant must be restored, by the officer in whose custody he shall be, to his original custody. [C. L. § 5144.

Cal. Pen. 1245*.

4966. Clerk to transmit record on appeal. Filing. Costs. Upon the appeal being taken the clerk with whom the notice of appeal shall have been filed must, within ten days thereafter in case the bill of exceptions has been settled before the giving of said notice, but if not, then within ten days from the settlement of the bill of exceptions, if there be a bill of exceptions, without charge transmit to the clerk of the supreme court the notice of appeal, the record, and all bills of exceptions, instructions and indorsements thereon, which shall constitute the record on appeal, and upon the receipt thereof, the clerk of the supreme court must file the same and perform the same service as in civil cases, without charge. [C. L. § 5145*.

Cal. Pen. C. 1246. Cal. Sup. '89, 1246*, p. 482. Papers constituting the record of the action, ? 4923.

SUFFICIENCY OF THE RECORD. Where the bill of exceptions does not state that it embodies all of the evidence in the case, the appellate court will presume that there was other and sufficient evidence to fully sustain the verdict. People v. Lyman, 2 U. 30.

A bill of exceptions and statements on appeal, not certified or authenticated as required by the statute regulating appeals in criminal cases, will be stricken from the files. People v. Idaho Bill, 2 U. 326. Action of trial court on motion for new trial is

not reviewable without a statement or bill of exceptions. People v. Smith, 3 U. 425; 4 P. 242.

Rulings admitting and rejecting evidence and overruling motion for new trial on affidavits of newly discovered evidence, cannot be reviewed on appeal unless embodied in bill of exceptions. U. S. v. Duggins, 11 U. 430; 40 P. 707.

If record fails to show service of notice, appeal will be dismissed. Defect cannot be supplied by extrinsic evidence. People v. Gough, 2 U. 69. People v. Fennel, 4 U. 112; 7 P. 525, 648.

Where defendant's counsel waived objection made to evidence admitted, the appellate court will not consider the admissibility of such evidence. People v. Farrell, 11 U. 414; 40 P. 703.

4967. Appeal by a defendant tried jointly. Effect. When several defendants are tried jointly, any one or more of them may take an appeal; but those who do not join in the appeal shall not be affected thereby.

Mont. Pen. C. ? 2283.

CHAPTER 42.

DISMISSING APPEAL FOR IRREGULARITY.

4968. Dismissal for substantial defect. Notice. If the appeal is irregular in any substantial particular, the supreme court may, on any day in the term, upon motion of the respondent, after five days' notice, accompanied with copies of the papers whereon the motion is founded, order it to be dismissed. [C. L. § 5146.

Cal. Pen. C. 1248*.

Errors not affecting substantial rights to be disregarded, ?? 4975, 5080.

4969. Dismissal affirms judgment. The dismissal of an appeal affirms the judgment.

N. Dak. (1895) ? 8342.

4970. Defect must be material. Irregularity corrected. New undertaking. An appeal must not be dismissed except for a material defect in the taking thereof. If an irregularity complained of is corrected in a reasonable time, the appeal shall be reinstated and the supreme court must fix the time and direct the manner of correcting the irregularity. If an undertaking has been given which is defective in any respect, a new one may be filed on appeal in the supreme court.

N. Dak. (1895) ?? 8342, 8343*.

CHAPTER 43.

HEARING ON APPEAL.

4971. Appeals to be heard and determined at first term. tinuance. All appeals in criminal cases must be heard and determined at the first term of the supreme court after the record shall have been filed, unless continued on motion or with the consent of the defendant. [C. L. § 5148.

Cal. Pen. C. 1252*.

4972. Failure of parties to appear. Effect. The judgment may be affirmed if the appellant fails to appear, but shall be reversed only after argument though the respondent fails to appear. [C. L. § 5149.

Cal. Pen. C. 1253.

4973. Argument may be restricted. Upon the argument of the appeal, if the offense is punishable with death, two counsel on each side must be heard, if they require it; in any other case the court may, in its discretion, restrict the argument to one counsel on each side. [C. L. § 5150.

Cal. Pen. C. ? 1254.

4974. Presence of defendant not necessary. not personally appear in the supreme court. [C. L. § 5151.

Cal. Pen. C. 1255.

The defendant need

CHAPTER 44.

JUDGMENT ON APPEAL.

4975. Errors not affecting substantial rights disregarded. After hearing an appeal, the court must give judgment without regard to technical

errors or defects or exceptions which do not affect the substantial rights of the parties. [C. L. § 5152.

Cal. Pen. C. 1258.

Errors and mistakes not affecting substantial rights shall be disregarded, ? 5080.

4976. Intermediate orders, etc., reviewed on appeal from judgment. Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits or which may have affected the judgment. [C. L. § 5153.

Cal. Pen. C. 1259.

4977. Power of supreme court on appeal. The court may reverse, affirm, or modify the judgment or order appealed from, and may set aside, affirm, or modify any or all the proceedings, subsequent to or dependent upon such judgment or order, and may, if proper, order a new trial. [C. L. § 5154.

Cal. Pen. C. 1260.

Power of supreme court, ?? 654, 655.
Supreme court under sec. 5154, C. L. 1888, may

reduce excessive fine. People v. Reggel, 8 U. 21; 28 P. 955.

When a new

4978. New trial ordered must be had in same court. trial is ordered, it must be directed that it be had in the district court of the county from which the appeal shall have been taken. [C. L. § 5155.

Cal. Pen. C. 1261.

All criminal business arising in a county must be

tried there unless a change of venue be taken, Con. art. 8, sec. 5.

4979. Reversal of judgment. Discharge of defendant. If a judgment against the defendant is reversed without ordering a new trial, the supreme court must, if he is in custody, direct that he be discharged therefrom; or if on bail, that his bail be exonerated; or if money shall have been deposited instead of bail, that it be refunded to the defendant. [C. L. § 5156.

Cal. Pen. C. ? 1262.

4980. Affirmance of judgment.

Enforcement. If a judgment against the defendent is affirmed, the original judgment must be enforced. [C. L. § 5157.

Cal. Pen. C. 1263.

4981. Entry of judgment. Papers remitted to court below. When the judgment of the supreme court shall have been given, it must be entered on the minutes, and a certified copy of the entry, together with the papers transmitted to the supreme court on appeal, forthwith remitted to the clerk of the court from which the appeal shall have been taken. [C. L. § 5158.

Cal. Pen. C. 1264*.

4982. After remittitur, district court has jurisdiction. After the certificate of the judgment shall have been remitted to the court below, the supreme court shall have no further jurisdiction of the appeal or of the proceedings thereon, and all orders necessary to carry the judgment into effect must be made by the court to which the certificate shall have been remitted. [C. L. § 5159.

Cal. Pen. C. 1265.

CHAPTER 45.

BAIL.

4983. Admission to bail defined. Admission to bail shall be by an order of a competent court, magistrate, or legally authorized officer, that the defendant be discharged from actual custody upon bail. [C. L. § 5160*.

Cal. Pen. C. 1268*.