CHAPTER I.

BILL OF EXCEPTIONS.

SECTION 455. In what cases.

456. By whom settled, and how filed.

457. To be settled at the trial, or the point noted in writing.

458, 459. When and how settled, after the trial.

460. Enlarging the time therefor.

461. Effect of not serving exceptions or amendments, within the

time prescribed.

455. In what cases.-On the trial of an indictment, excep tions may be taken by the defendant, to a decision of the court, upon a matter of law, by which his substantial rights are prejudiced and not otherwise, in any of the following cases:

1. In disallowing a challenge to the panel of the jury;

2. In admitting or rejecting testimony on the trial of a challenge for actual bias to any juror who participated in the verdict, or in allowing or disallowing such challenge;

3. In admitting or rejecting witnesses or testimony, or in deciding any question of law, not a matter of discretion, or in charging or instructing the jury upon the law, on the trial of the issue.

See People v. McQuade, 110 N. Y. 284; 21 Abb. N. C. 418, 439, 447; People v. Welch, 1 N. Y. Cr. Rep. 488; People v. Petrea, id. 203; People v. Willett, 3 id. 327; 36 Hun, 504; People v. Petmecky, 2 N. Y. Cr. Rep. 458; People v. Sullivan, 4 id. 197; People v. Palmer, 109 N. Y. 419; 5 N. Y. Cr. Rep. 105; Walker v. People, 1 id. 7; Berry v. People, id. 43, 57; 19 Alb. L. J. 336; 77 N. Y. 588.

456. By whom settled, and how filed. - A bill containing the exceptions must be settled and signed by the presiding judge, and filed with the clerk.

See People v. Bradner, 107 N. Y. 1; 44 Hun, 235; People v. Buddensieck, 103 N. Y. 478; People v. McQuade, 110 id. 284; Briggs v. Waldron, 83 id. 582.

457. To be settled at the trial, or the point noted in writing. The bill of exceptions must be settled at the trial unless the court otherwise direct. If no such direction be given, the point of the exception must be particularly stated in writing, and delivered to the court, and must immediately be corrected or added to, until it is made conformable to the truth.

§ 458. When and how settled, after the trial.-If the bill of exceptions be not settled at the trial it must be prepared and served, within five days thereafter, on the district attorney, who may, within five days, serve on the defendant or his counsel, amendments thereto. The defendant may then, within five days, serve the district attorney with a notice to appear before the presiding judge of the court, at a specified time, whether in or out of court, not less than five nor more than ten days thereafter, to have the bill of exceptions settled.

-

$459. When and how settled, after the trial. At the time appointed, the judge must settle and sign the bill of exceptions.

See People v. Bradner, 44 Hun, 235; 107 N. Y. 1.

$460. Enlarging the time therefor. -The time for preparing the bill of exceptions or the amendments thereto, or for settling the same, may be enlarged by consent of the parties, or by the presiding judge, or by a judge of the supreme court but by no other officer.

8461. Effect of not serving exceptions or amendments, within the time prescribed. If the bill of exceptions be not served within the time prescribed in section four hundred and fifty-eight, or within the enlarged time therefor, as prescribed in the last section, the exceptions are deemed abandoned. If it be served, and the parties omit, within the time limited by section four hundred and fifty-eight, the one to prepare amendments, and the other to give notice of appearance before the judge, they are respectively deemed, the one to have agreed to the bill of exceptions, and the other to the amendments.

CHAPTER II.

NEW TRIALS.

SECTION 462. New trial.

463. When granted.

464. Effect of granting new trial

465. In what cases granted.

466. Application, when to be made.

8 462. New trial. A new trial is a re-examination of the issue, in the same court, before another jury, after a verdict has been given.

See § 544 post. People v. Beckwith, 5 N. Y. Cr. Rep. 233; 42 Hun, 367; People v. Palmer, 43 id. 409.

§ 463. When granted. A new trial can be granted by the court in which the former trial was had only in the cases provided in section four hundred and sixty-five.

See People v. Bradner, 107 N. Y. 1; 44 Hun, 233; People v. Palmer, 43 id. 409; 5 N. Y. Cr. Rep. 109; People v. Draper, 28 Hun, 3.

8 464. Effect of granting a new trial.-The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew; and the former verdict cannot be used or referred to, either in evidence or in argument.

See People v. Palmer, 109 N. Y. 413; 4 Am. St. Rep. 477; 5 N. Y. Cr. Rep. 109; 43 Hun, 409; People v. Upton, 38 id. 110; People v. Cignarale, 110 N. Y. 33.

In the course of the trial of an indictment for murder the district attorney referred to a former conviction of the defendant on trial under the same indictment, and in his argument referred to the fact that a witness called for the defendant on the former trial was not called on this. Held, that while the language of the district attorney was improper and a technical violation of this section, yet as the facts showed defendant was not injured it was not a ground for reversal; that to justify a reversal on such a ground the court should be satisfied that justice requires it. People v. Greenwall, 115 N. Y. 520. In Hatch v. State, 8 Tex. App. 416; 34 Am. Rep. 751, the public prosecutor in addressing the jury denounced defendant as a fellow," and a "land thief," and "as guilty as hell;" and the prisoner having previously been convicted and got a new trial, the prosecutor said the new trial was obtained "by a dodge and technicality," and boasted of his ability to convict him before twelve honest men as many times as he could get a new trial. The statute forbade any allusion to a former conviction. On account of this language, the defendant being convicted, a new trial was granted, although the trial judge admonished the jury to disregard it.

§ 465. In what cases granted. The court in which a trial has been had upon an issue of fact has power to grant a new trial when a verdict has been rendered against the defendant, by which his substantial rights have been prejudiced, upon his application, in the following cases:

1. When the trial has been had in his absence, if the indict ment be for a felony;

2. When the jury has received any evidence out of court, other than that resulting from a view, as provided in section four hundred and eleven;

3. When the jury have separated without leave of the court, after retiring to deliberate upon their verdict, or have been guilty of any misconduct by which a fair and due consideration of the case has been prevented;

4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors;

5. When the court has misdirected the jury in a matter of law, or has refused to instruct them as prescribed in section four hundred and twenty; and the defendant has, at the trial, excepted to such misdirection or refusal;

6. When the verdict is contrary to law or clearly against evidence ;

7. When it is made to appear, by affidavit, that upon another trial, the defendant can produce evidence such as if before received would probably have changed the verdict; if such evidence has been discovered since the trial, is not cumulative; and the failure to produce it on the trial was not owing to want of diligence.

See People v. Kelly, 31 Hun, 225; People v. Osterhout, 3 N. Y. Cr. Rep. 446; People v. Wentworth, 4 id. 209; People v. Joyce, id. 344.

As to the power of the appellate courts to order a new trial, see § 527–528. An appeal from a judgment of conviction brings before the general term for review the decision of the trial ourt upon a motion for a new trial, as well as the proceedings upon the trial. People v. Mangano, 29 Hun, 259, 263. Subdiv. 2. See People v. Johnson, 110 N. Y. 135; affirming 46 Hun, 667; People v. Palmer, 43 id. 407, 409; 5 N. Y. Cr. Rep. 106, 109; People, ex rel. Choate, v. Barrett, 30 State Rep. 732; People v. Tyrrell, 3 N. Y. Cr. Rep. 142.

When, in a capital case after the testimony was closed, a part of the jury, in company with an officer, visited the scene of the homicide, it was held ground for a new trial. Eastwood v. People, 3 Park. 25; 14 N. Y. 562.

Subdiv. 3. See People v. Kelly, 94 N. Y. 526; 2 N. Y. Cr. Rep. 18; People v. Seeley, 3 id. 232; People v. Menken, 36 Hun, 91; People v. Riley, 3 N. Y. Cr. Rep. 384; Beebe v. People, 5 Hill, 32; People v. Montgomery, 13 Abb. Pr. (N. S.) 207; Eastwood v. People, 3 Park. 25; People v. Hartung, 4 id. 256; 17 How. Pr. 85; Wilson v. People, 4 Park. 619; 8 Abb. Pr. 137; People v. Draper, 28 Hun, 1; Early v. State, 1 Tex. App. 248; 28 Am. Rep. 409; Kelly v. State, 12 Crim. Law Mag. 231.

It is not a ground for a new trial in a capital case that one of the jurors was apparently asleep, to the knowledge of the prisoner's counsel, who omitted to call the court's attention to it. People v. Morrissey, 1 Sheld. 295.

If a jury take out with them certain written evidence read in evidence, to which is attached an affidavit not so read, it is ground for a new trial. Mitchell's Case, 1 City Hall Rec. 147.

When a new trial is desired on the ground of irregularities of the jurors while in the jury room, affidavits of the jurors cannot be used on the motion. 34 Am. Dec. 617; 21 Am. L. Reg. (N. S.) 742; Wilson v. People, 4 Park. 619; People v. Hartung, 17 How. Pr. 85; Ostrander v. People, 28 Hun, 46; Wiggins v. Downer, 67 How. Pr. 65.

A new trial will not be granted in a capital case merely because the jury read a newspaper containing a report of the trial but without any comments which would prejudice the prisoner. People v. Gaffney, 14 Abb. Pr. (N. S.) 36; 1 Sheld. 304; affirmed, 50 N. Y. 424.

Subdiv. 4. Williams v. State, 15 Lea, 129; 54 Am. Rep. 404; Cochlin v. People, 93 Ill. 410.

Subdiv. 5. See People v. Casey, 96 N. Y. 116; 2 N. Y. Cr. Rep. 194.

A new trial will not be granted because the trial judge refused to charge the jury, there being no question of law in the case. People v. Gray, 5 Wend. 289.

That the judge laid down an erroneous proposition and immediately corrected it, is no ground for a new trial. Eggler v. People, 56 N. Y. 642.

Subdiv. 6. See People v. Stokes, 2 N. Y. Cr. Rep. 382; Sawyer v. People, 27 Hun, 286.

A new trial may be granted where the verdict is clearly against the weight of evidence. Rogers v. People, 3 Park. 632; People v. Shay, 4 id. 344; Manuel v. People, 48 Barb. 548.

Subdiv. 7. See People v. Stokes, 2 N. Y. Cr. Rep. 382; People v. Beckwith, 42 Hun, 366; People v. Lane, 1 N. Y. Cr. Rep. 554; 31 Hun, 13; Geneva, etc., R. Co. v. Sage, 35 id. 95; Anderson v. Market Nat. Bank, 66 How. Pr. 8.

When a new trial may be had on ground of newly-discovered evidence. People v. Hovey, 30 Hun, 354; 1 N. Y. Cr. Rep. 324; 92 N. Y. 554; People v. Leighton, 1 N. Y. Cr. Rep. 468; People v. Bradner, 107 N. Y. 1.

A motion for a new trial upon the ground of newly-discovered evidence cannot be granted where such evidence is cumulative. People v. Leighton, 1 N. Y. Cr. Rep. 468; 30 Hun, 354.

It must be shown affirmatively by the party seeking the new trial that the proposed evidence is not cumulative. People v. Hovey, 30 Hun, 354; 1 N. Y. Cr. Rep. 324; affirmed, 93 N. Y. 651; People v. Jones, 25 Weekly Dig. 541. When the defendant in a criminal action testifies in his own behalf, but no evidence of good character is given on his part, on a motion for a new trial on affidavits showing defendant's good character, such evidence is not cumulative, and a new trial may be ordered when it appears such evidence, had it been given, might have changed the verdict. People v. Lane, 31 Hun, 13.

Newly-discovered evidence not sufficient unless it appears that it could not have been discovered with proper diligence on the trial. People v. Mack, 2 Park, 673.

In cases of doubt where the evidence is conflicting and the credibility of witnesses in question, and no error has been committed, a new trial will be denied. Id.