On a motion for a new trial on the ground of newly-discovered evidence, the court must consider not only the affidavits upon which the motion is based, but the testimony and proceedings on the former trial, and also whether the newly-discovered evidence would, if given on the former trial, have changed the verdict. People v. Hovey, 30 Hun, 354; 1 N. Y. Cr. Rep. 324; affirmed, 93 N. Y. 651.

Evidence which existed and was known to defendant before the former trial cannot be considered newly-discovered, because he has since discovered that it might have been important if used on the trial. People v. Hovey, 30 Hun, 354; 1 N. Y. Cr. Rep. 324; affirmed, 93 N. Y. 651.

A new trial should not be granted upon the application of defendant, where the alleged newly-discovered evidence is inconsistent with the testimony of the defendant on the former trial. People v. Hovey, 30 Hun, 354; 1 N. Y.

Cr. Rep. 324; affirmed, 93 N. Y. 651.

§ 466. Application, when to be made.— The application for a new trial must be made before judgment, except an application made under subdivision seven of section four hundred and sixty-five, which may be made at any time within one year, and except in case of a sentence of death when the application may be made at any time before execution, and in case the court before which the trial was had is not in session so that the application can be made and determined before the execution, then the application may be made to any justice of the supreme court or special term thereof, within the judicial department where the conviction was had.

See People v. Bradner, 107 N. Y. 10; People v. Leighton, 1 N. Y. Cr. Rep. 468; People v. O'Neil, 47 Hun, 156; People v. Palmer, 5 N. Y. Cr. Rep. 109; 43 Hun, 409; People v. Beckwith, 42 id. 367; 5 N. Y. Cr. Rep. 233; People v. Wentworth, 4 id. 210; People v. Hovey, 1 id. 324; 30 Hun, 354; 93 N. Y. 651.

CHAPTER III.

ARREST OF JUDGMENT.

SECTION 467. Motion in arrest of judgment, defined, and upon what defects

founded.

468. Court may arrest judgment without motion

469. Motion, when and how made.

470. Defendant, when to be held or discharged.

§ 467. Motion in arrest of judgment, defined, and upon what defects founded.— 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 upon the plea of a former conviction or acquittal. It may be founded on any of the defects in the indictment mentioned in section three hundred and thirty-one.

See People v. D'Argencour, 32 Hun, 179; People v. Menken, 36 id. 99; 3 N. Y. Cr. Rep. 242; People v. Upton, 38 Hun, 107; People v. Joyce, 4 N. Y. Cr. Rep. 348; People v. Beckwith, 5 id. 233; 42 Ilun, 367; People v. Sullivan, 49 id. 333.

Upon a motion in arrest of judgment only two objections are available; (1) "to the jurisdiction of the court over the subject of the indictment;" (2) "that the facts stated do not constitute a crime." People v. Buddensieck, 103 N. Y. 487; 5 N. Y. Cr. Rep. 71.

A motion for arrest of judgment in a criminal action cannot be made save for some defect that appears on the record; it cannot be based upon proof by affidavit of facts outside and constituting no part of the record. People v. Kelley, 94 N. Y. 526.

Upon the trial of an indictment the prisoner was not formally arraigned, nor did he formally plead. He was present, with counsel, at the trial, made no objection to the failure to arraign, nor did he request to plead. After verdict, these objections were first raised by a motion in arrest of judgment. Held, that they were untenable, no substantial right of the prisoner having been taken away, and that the question was not a proper ground for such a motion. People v. Osterhout, 34 Hun, 260; 3 N. Y. Cr. Rep. 445.

Motion in arrest is not confined to indictment but may include the whole record. People v. Bruno, 6 Park. 657.

It cannot bring up a variance between the proof and the indictment. People v. Onondaga Gen. Sess., 1 Wend. 296; Case v. People, 6 Abb. N. C. 151. Neither can mistakes of the court on trial, nor of the jury, be considered. People v. Thompson, 41 N. Y. 1; People v. Allen, 43 id. 28.

A motion in arrest of judgment can only be made for defects on the record. Jacobowsky v. People, 6 Hun, 524; 64 N. Y. 659.

A conviction in a capital case without a venire being returned and filed is sufficient ground. People v. McKay, 8 Johns. 212.

A mere irregularity in the venire no ground. People v. Herkimer County, etc., 20 Johns. 310.

That the time laid in the indictment is beyond the period of limitation is no ground. People v. Van Santford, 9 Cow. 655.

Where an indictment for misdemeanor contains two counts, one good and the other bad, judgment will not be arrested. Kane v. People, 3 Wend. 363. 8 id. 203; People v. Davis, 45 Barb. 494; Frazer v. People, 54 id. 306; People v. Stein, 1 Park. 202; People v. Gilkinson, 4 id. 26.

One good count is sufficient to sustain a conviction. People v. Davis, 56 N. Y. 95.

$468. Court may arrest judgment without motion.— The court may also, on its own view of any of these defects, arrest the judgment without motion.

§ 469. Motion, when and how made. The motion must be made before or at the time when the defendant is called for judgment. If made before, it must be on notice to the district attorney, or in his presence.

See People v. D'Argencour, 95 N. Y. 624; 32 Hun, 179.

§ 470. Defendant, when to be held or discharged. — When judgment is arrested, and it appears that there is not evidence sufficient to convict the defendant of any crime, he must, if in custody, be discharged; or, if under bail, his bail must bo excnerated; or, if money has been deposited instead of bail, it must be refunded; and in such case the arrest of judgment ope rates as an acquittal of the charge upon which the indictment was found; but if there is reasonable ground to believe the defendant guilty, and a new indictment can be framed upon which he may be convicted, the court may order him to be recommitted or admitted to bail anew to answer the new indictment; if there is reasonable ground to believe him guilty of another crime, he must be committed or held to answer therefor; and in no case, when recommitted or held to answer, is the former verdict a bar to a new indictinent.

CHAPTER IV.*

SUSPENSION OF JUDGMENT. SECTION 470a. Suspension of judgment. 470b. Regarded as a conviction.

470a. Suspension of judgment.-If the judgment be suspended after a plea or verdict of guilty or after a verdict against the defendant upon a plea of a former conviction or acquittal the court may pronounce judgment at any time thereafter within the longest period for which the defendant might have been sentenced; but not after the expiration of such period, unless the defendant shall have been convicted of another crime committed during sucht period.

$470b. Regarded as a conviction. If judgment be not pronounced as in the last section provided, nevertheless;

* Added Laws 1893, ch. 651; in effect May 8, 1893. By section 2 of said act, all acts and parts of acts inconsistent with the provisions of this act are hereby repealed, in so far as inconsistent therewith.

1. For the purpose of indictment and conviction of a second offense, the plea or verdict and suspension of judgment shall be regarded as a conviction, and shall be pleaded according to the fact.

2. The said plea or verdict and suspension of judgment may be proved in like manner as a conviction for the purpose of effecting* the weight of the defendant's testimony in any action or proceeding, civil or criminal.

TITLE IX.

OF THE JUDGMENT AND EXECUTION.

CHAPTER I. The judgment.

II. The execution.

CHAPTER I.

THE JUDGMENT.

SECTION 471, 472. Time for pronouncing judgment, to be appointed by the court.

473. In felony, defendant must be present; in misdemeanor, judgment may be pronounced in his absence.

474. When defendant is in custody, how brought before the court for judgment.

SECTION 475. How brought before the court, when he is on bail.

476. Bench warrant to issue.

477. Form of bench warrant.

478, 479. Service of the bench warrant.

480. Arraignment of defendant for judgment.

481. What cause may be shown against the judgment.

482. If no sufficient cause shown, judgment to be pronounced.

483. Court may summarily inquire into circumstances in aggravation or mitigation of punishment.

484. Judgment to pay fine.

485. The judgment roll.

§ 471. Time for pronouncing judgment to be appointed by the court. After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment be not arrested, or a new trial granted, the court must appoint a time for pronouncing judgment.

See People, ex rel. Evans, v. McEwen, 67 How. Pr. 105; 2 N. Y. Cr. Rep. 313; Moett v. People, 85 N. Y. 373; State v. Vose, 8 L. R. A. 767.

There is no constitutional principle which requires that judgment on conviction must be pronounced by the same judges before whom the trial was had. People v. Bork, 96 N. Y. 198; Weed v. People, 56 id. 628.

472. Time for pronouncing judgment to be appointed by the court. The time appointed must be at least two days after the verdict, if the court intend to remain in session so long, or if not, as remote a time as can reasonably be allowed; but any delay may be waived by the defendant.

See People v. Everhardt, 104 N. Y. 592.

§ 473. In felony, defendant must be present; in misdemeanor, judgment may be pronounced in his absence. For the purpose of judgment, if the conviction be for a felony. the defendant must be personally present; if it be for a misdemeanor, judgment may be pronounced in his absence.

8474. When defendant is in custody, how brought before the court for judgment. When the defendant is in custody, the court may direct the officer in whose custody he is to bring him before it for judgment; and the officer must do so accordingly.

§ 475. How brought before the court when he is on bail. If the defendant have been discharged on bail, or have deposited money instead thereof, and do not appear for judgment, when his personal attendance is necessary, the court, in addition to the forfeiture of the undertaking of bail or of the money deposited, may direct the clerk to issue a bench warrant for his arrest.

§ 476. Bench warrant to issue.—The clerk, on the application of the district attorney, may accordingly, at any time after the order, whether the court be sitting or not, issue a bench warrant into one or more counties.

8 477. Form of bench warrant.

be substantially in the following form:

The bench warrant must

County of Albany, [or as the case may be.]

"In the name of the people of the State of New

[SEAL.] York-To any sheriff, constable, marshal or policeman in this state. A. B. having been on the

day of 18 , duly convicted in the court of sessions of the county of Albany [or as the case may be], of the crime of [designating it generally].