§ 1387. Defendant, when to be discharged or detained after acquittal. § 1388. Defendant, custody of, when verdict given against him. Proceeding when defendant acquitted on account of insanity. § 1389. 158. § 1377. [178.] The jury may either find a general Oct. 19, 1864, verdict, or where they are in doubt as to the legal effect of the facts proven, they may find a special verdict. Instruction as to form of verdict. The court may in any case instruct the jury as to form of their verdict; and if it appears from their verdict, as first returned, that they do not know the proper form, it is the duty of the court to instruct them in that regard, and direct them to return the verdict in such form that the judgment of the law may thereupon be pronounced: See § 1386 [187], post; People v. Ah Gow, 53 Cal. 628. A court may not direct a jury to find a certain verdict, either special or general, but may, on request, instruct them as to their right to find either: People v. Antonio, 27 Id. 404. Verdict generally. It is error to receive the verdict in defendant's absence where the offense charged is a felony: State v. Spores, 4 Or. 198. A general verdict of guilty means guilty of all that the indictment sufficiently alleges: People v. Magellones, 15 Cal. 26; State v. Jones, 69 N. C. 364; State v. Nowlan, 64 Me. 531; Lovell v. State, 45 Ind. 550. If informal, the court will nevertheless give effect to it, whether for or against the defendant: People v. McCarty, 48 Cal. 557; Arnold v. State, 51 Ga. 144; Bloombuff v. State, 8 Blackf. 205. A verdict of guilty upon one count, and silent upon others, is an acquittal upon such others: State v. Watson, 63 Me. 128; Guenther v. People, 24 N. Y. 100. Surplusage in a verdict does not vitiate it, but it may be rejected: People v. Ah Kim, 34 Cal. 189; Bittick v. State, 40 Tex. 117; McEntee v. State, 24 Wis. 43; but if a verdict is uncertain, no valid judgment can be rendered upon it: State v. Coon, 18 Minn. 518. As where it fails to show which of two defendants is meant to be convicted: Favor v. State, 54 Ga. 249; or on which of two counts a conviction is: Campbell v. Regina, 1 Cox C. C. 269; Day v. People, 76 Ill. 380. A general verdict, where two are charged in the indictment with a crime, is good, and is a verdict against both: Jones v. Snider, 8 Or. 127. A verdict which finds "the 'defendances' guilty as charged in the 'inditsement,' is not uncertain: People v. Sepulveda, 7 Pac. C. L. J. 688; but where there are two defendants, and the verdict reads: "We find the defendant guilty as charged in the indictment," it is fatally irregular: People v. Sepulveda, 59 Cal. 342. A verdict finding a person guilty who is not named in the indictment is an acquittal of the defendant: People v. Ah Ŷe, 31 Id. 451; but where the defendant was indicted by one name, and, upon arraignment disclosed another as his true name, under which the prosecution was conducted, a verdict of guilty, in which the original title of the cause was prefixed, is sufficient: People v. Ah Kim, 34 Id. 189. "Guilty as charged" is a good verdict on a prosecution for grand larceny: People v. Whiteley, 64 Cal. 211; People v. De Cleer, 60 Id. 382; People v. Gilbert, 60 Id. 180. Where, however, the indictment charged the defendant with an assault with an intent to commit murder, and the verdict found him guilty of the "indictment as charged to him," it was held that these words conveyed no meaning: People v. Ah Gow, 53 Id. 627. A verdict, "we, the jury, find that the defendant is guilty of murder in the second degree," is good, both in form and substance: People v. Buckley, 49 Cal. 241. A verdict, "we, the jury in the case of do find a verdict of manslaughter," is sufficient in substance: People v. Perdue, 49 Id. 425. "We, the jury, find the defendant guilty as indicted, to the sum of ninety dollars," is sufficient in substance where the indictment is for embezzlement: People v. Gilbert, 57 Id. 96. If there be a plea of not guilty, and also one of former conviction or acquittal, defendant is entitled to a verdict on each plea, and until there is such a verdict there can be no judgment of conviction: People v. Kinsey, 51 Id. 278; People v. Helbing, 56 Id. 597. Informality in the verdict does not Verdict may be either general or special. Oct. 19, 1864, ◊ 158. Oct. 19, 1864, $159. General verdict, form of, and what it imports. Oct. 19, 1864, $160. Special verdict defined. Requisites of. Oct. 19, 1864, » 161. Special verdict, how given. Oct. 19, 1864, 162. Judgment on special verdict. vitiate: People v. Gilbert, 57 Cal. 96. v. Jenkins, 56 Id. 4. Defects in an indictment are not cured by a general verdict of guilty: People v. Wal lace, 9 Cal. 30. § 1378. [179.] A general verdict upon a plea of not guilty, is either "guilty " or "not guilty"; which imports a conviction or acquittal of the crime charged in the indictment; and upon a plea of a former conviction or acquittal of the same crime, the verdict is either "for the state," or "for the defendant." See the note to the preceding section. § 1379. [180.] A special verdict is one by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact, as established by the evidence, and not the evidence to prove them; and these conclusions of fact must be so presented as that nothing remains to the court but to draw conclusions of law upon them. See the note to § 1377 [178], ante. § 1380. [181.] The special verdict must be reduced to writing by the jury, or in their presence, under the direction of the court, and agreed to by them, before they are discharged. It need not bo in any particular form, but is sufficient if it present intelligibly the facts found by the jury. § 1381. [182.] The court must give judgment upon the special verdict as follows: 1. If the plea be not guilty, and the facts prove the defendant guilty of the crime charged in the indictment, or of any other crime of which he could be convicted under that indictment, as provided in sections 1382 [183] and 1383 [184], judgment must be given accordingly; but if otherwise, judgment of acquittal must be given. § 1382. [183.] Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, crime charged, and guilty of any degree inferior thereto, or of an attempt to commit the crime or any such inferior degree thereof. Oct. 19, 1864, 163. Jury may con vict of any de gree of the or of an at tempt to commit the same. 15 Or. 573. Conviction of inferior degree of crime. Where a general verdict of guilty is rendered, it is a conviction on every material allegation in the indictment; but if the jury intend a conviction of a lesser offense than that charged, but necessarily included in it, they must so specify in the verdict: People v. March, 6 Cal. 543. Where the indictment charges the crime of murder, a verdict of manslaughter is not inconsistent with the indictment: State v. Wintzingerode, 9 Or. 153; Fitzhugh v. State, 2 Id. 217; State v. Grant, 7 Id. 414. So as to degrees of lar- Oct. 19, 1864, See the rule where there is a doubt vict of any crime neces sarily included in that charged. Id., § 165. § 1383. [184.] In all cases, the defendant may be Id., § 164. found guilty of any crime, the commission of which is Jury may connecessarily included in that with which he is charged in the indictment, or of an attempt to commit such crime. § 1384. [185.] On an indictment against several, if the jury cannot agree upon a verdict as to all, they may Jury may give give a verdict as to those in regard to whom they do defendants, agree, on which a judgment must be given accordingly; whom they and the case as to the rest of the defendants may be tried by another jury. verdict as to concerning agree. court may di eration of ver § 1385. [186.] When there is a verdict found, in 1d., § 166. which it appears to the court that the jury have mistaken When and how the law, the court may explain the reason for that opinion, rect a reconsid and direct the jury to reconsider their verdict; but if dict. after such reconsideration they find the same verdict, it must be received. § 1386. [187.] If the jury find a verdict which is Id., § 167. neither a general nor a special verdict, as defined in sec- Same subject. tions 1378 [179] and 1379 [180], the court may, with proper instructions as to the law, direct them to reconsider it; and the verdict cannot be received until it be Verdict cannot given in some form from which it can be clearly under- until in legal stood what is the intent of the jury, whether to render a general verdict or to find the facts specially, and to leave the judgment to the court. be received form. Id., § 168. Defendant, charged or de § 1387. [188.] If judgment of acquittal be given on a general or special verdict, and the defendant be not detained for any other legal cause, he must be discharged as soon as the judgment is given, except that, when the acquittal. when to be dis tained after Oct. 19, 1854, 168. Defendant, charged or de acquittal is for a variance between the proof and the indictment, which may be obviated by a new indictment, when to be dis- the court may order his detention, to the end that a new indictment may be preferred, in the same manner and with like effect, as provided in sections 1317 [118] and 1318 [119]. tained after acquittal. Oct. 19, 1864, 169. Defendant, custody of, against him. § 1388. [189.] If a general verdict be given against when verdict the defendant, or a special verdict be given, he must be remanded, if in custody; if he has given bail, he may be committed to await the judgment of the court upon the verdict. When committed, his bail is exonerated; or if money be deposited in lieu thereof, it must be refunded to the defendant. Oct. 19, 1864, $170. Proceeding, when defend ant acquitted on account o insanity. § 1389. [190.] If the defense be the insanity of the defendant, the jury must be instructed, if they find him not guilty on that ground, to state that fact in their ver dict, and the court must thereupon, if it deems his being at large dangerous to the public peace or safety, order him to be committed to any lunatic asylum authorized by the state to receive and keep such persons, until he become sane, or be otherwise discharged therefrom by authority of law. Oct. 19, 1864, 171. CHAPTER XVIII. OF EXCEPTIONS AND NEW TRIAL. § 1390. Regulated by titles 7 and 8 of chapter 2 of Code of Civil Procedure, except. § 1390. [191.] Titles VII. and VIII. of chapter II. of the Code of Civil Procedure shall apply to and regulate and new trial, exceptions and new trials in criminal actions, except how regulated. that a new trial shall not be granted on the application Exceptions of the state. CHAPTER XIX. OF ARREST OF JUDGMENT. § 1391. Motion in arrest of judgment defined; upon what causes founded, § 172. Motion in ar ment, defini what causes founded and when made. § 1391. [192.] A motion in arrest of judgment is an oct. 19, 1864, application on the part of the defendant that no judgment be rendered on a plea or verdict of guilty, or on a rest of judg verdict against the defendant on the plea of a former tion of; upon conviction or acquittal. It may be founded on either or both of the causes specified in subdivisions 1 and 4 of section 1322 [123], and not otherwise. The motion must be made within the time allowed to file a motion for a new trial, and both such motions may be made together, and heard and decided at once or separately, as the court may direct. § 1392. [193.] The effect of allowing a motion in oct. 19, 1864, $173. arrest of judgment is to place the defendant in the same Effect of arrest situation in which he was before the indictment was ing judgment. found. Upon entry of order arresting judgment defendant is entitled to his discharge, unless detained by vir tue of some legal process or order: Ex $174. when to be standing arrest held notwith of judgment. § 1393. [194.] If, from the evidence given on the Oct. 19, 1864, trial, there is reasonable ground to believe the defendant Defendant, guilty, and a new indictment can be framed upon which he may be convicted, the court must order the defendant to be recommitted to custody or admitted to bail, to answer the new indictment, if one be found; and if the evidence show him to be guilty of another crime than that charged in the indictment, he must in like manner be committed or held thereon, and in neither case is the verdict a bar to another action for the same crime. § 1394. [195.] If no evidence appear sufficient to Oct. 19, 1864, charge the defendant with any crime, he must, if in cus ◊ 175. |