1176. When written charges have been presented, given, or refused, or when the charges have been taken down by the reporter, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges of the report, with the indorsements showing the action of the court, form part of the record, and any error in the decision of the court thereon may be taken advantage of on appeal, in like manner as if presented in a bill of exceptions.

Charges given or refused.-This section refers to charges and instructions which either party may present, and ask to be given in accordance with § 1127 of this Code, and not to the charge of the coart on its own motion-44 Cal. 598. An alleged error in the charge to the jury will not be noticed unless the party excepts, and by bill of exceptions places the charge on the record-20 Pick. 205; 14 Smedes & M. 120. A mere general exception to the charge, without specifying any grounds of error or asking for a particular charge, is not well taken57 Barb. 46.

The refusal to give an instruction is not a ground unless the judge was requested to give it-33 Me. 554. Where a bill of exceptions is allowed, the facts einbraced in it become part of the record, and a writ of error brings up the entire record, and error may be assigned on any part of it-5 Ala. 666. Where it does not disclose what the evidence was in relation to which the charge was given, it will be overruled if the instruction could have been correct in any supposable state of the evidence-5 R. I. 53.

Phonographic notes of evidence taken at the trial and transcribed into long-hand, even if verified by affidavit, do not constitute a part of the record on appeal for any purpose-14 Cal. 327; 43 id. 177. They are no part of the bill of exceptions unless embodied therein, and referred to in the bill so as to identify them-53 Cal. 602. Before incors porating them in a bill of exceptions, all matter not necessary or proper to illustrate the points presented on appeal should be elimiiated, and it then should be revised by the judge-42 Cal. 558. The report transcribed into long-hand from the reporter's notes is only prima facie a correct statement of evidence and proceedings, while a bill of exceptions imports absolute verity-42 Cal. 533; 28 id. 218; 32 id. 91; 34 id. 309; 37 id. 274; 40 id. 286. See ante, § 1093, note.

PEN. CODE.-41.

§ 1182. Application for, when made.

1179. A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given.

New trial.-A new trial is a re-examination after verdict, of facts and law not of record-3 Ga. 310; but an error which is apparent on the record, and which can be noticed in arrest of judgment, will not ordinarily be ground for a new trial-3 Conn. 289; as the omission of a letter from the prisoner's name on the bill found by the grand jury -1 Bay, 377. Where the name of a witness was indorsed on the indictment slightly variant from the real name, the misuomer was not sufficient to maintain a motion for a new trial-6 Pac. C. L. J. 399.

Objections to drawing and impanneling of the jury come too late on motion for a new trial. They are deemed waived if not taken in time-24 Cal. 230; 43 id. 146. A general excitement against the prisoner at the time of the trial, in the community at large, is not a ground for a new trial-7 Watts & S. 422; but if such excitement pervade the jury-box, and works to the prejudice of the defendant, the verdict ought to be set aside-10 Cal. 195. It is no ground for a new trial that on a challenge for actual bias one of the triers is, on the panel of the jury, in attendance in the case-43 Cal. 147; id. 167. The motion must be made viva voce, and if desired, the grounds and rulings of the court may be embodied in a bill of exceptions, and can be reviewed by the Supreme Court in no other way-i Cal. 651.

1180. 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, or be pleaded in bar of any conviction which might have been had under the indictment. [Approved March 30th, in effect July 1st, 1874.]

1181. When a verdict has been rendered against the defendant, the court may, upon his application, grant a new trial, in the following cases only:

1. When the trial has been had in his absence, if the indictment is for a felony.

2. When the jury has received any evidence out of court other than that resulting from a view of the premises.

3. When the jury has separated without leave of the court, after retiring to deliberate upon their verdict, or 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 erred in the decision of any question of law arising during the course of the trial.

6. When the verdict is contrary to law or evidence.

7. When new evidence is 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.

Grounds for new trial.-This section clearly excludes all other grounds-43 Cal. 146, overruling 9 Cal. 298. Instead of appealing from the judgment, defendant may move for a new trial on any or all of the grounds mentioned in this section, and if the motion be denied, may present the draft of a bill of exceptions, and have the same settled as provided in § 1174-53 Cal. 184. See ante, § 1172.

Subd. 1. It is not sufficient simply to object that defendant was not present at times when acts can only be done in his presence; he must prove his absence-4 Cal. 218; 37 id. 274.

Subd. 2. Where a witness conversed with one or more of the jurors on the facts of the case, when out of court to view the premises, it was error-43 Cal. 167. See ante, § 1102.

Subd. 3. A separation of the jury in a capital case is prima facie ground for a new trial, subject to be rebutted by proof that no improper Influence reached the jury-22 Cal. 348; 12 Ark. 732; 1 Conn. 401; 19 Gratt. 485; 20 Ga. 752; 8 Humph. 597; 11 Ired. 514; 21 Ill. 373; 30 id. 256; 24 Ind. 151; 1 Kan. 340; 1 Cowen, 26; 39 Miss. 721; 3 Minu. 444; 7 N. H.

291; 14 N. Y. 562; 12 Pick. 496; 7 R. I. 337; 31 N. J. L. 249; 30 Wis. 132; 37 d. 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 inisconduct on the part of the jury or the officer, for which a new trial should be granted-45 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 al lowed 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 vaguo 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; 43 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. 33; 4 Johns. 487; 9 Kan. 119; 15 La. An. 557; 65 Me. 111; 4 Mass. 391; 39 Mo. 320; 65 id. 149; 65 id. 148; 23 N. H. 301; id. 321; 74 N. C. 46; 78 id. 500; 1 Parker Cr. R. 256; id. 262; id. 675; 2 id. 777; 1 Wend. 297; 9 Yerg. 408; 3 Tcx. 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. 333; but see 3 Me. 204; 6 Gra t. 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. 258. It will not be permitted to be shown that one or more of the jurors agreed to the vet 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 IIeisk. 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 on the stand was cal culated 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. 457; 40 id. 613; 2 Blackf. 5; 2 Brev. 126; 6 Grant Cas. 66; 13 Mass. 245; 19 Mo. 683; 71 N. C. 263; 3 Simedes & 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-441 Cal. 69; 30 id. 316; 3) 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. 454. 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