And whereupon, on a subsequent day of the term, before any judgment was entered on the said verdict, the said defendant by his counsel moved the court to set aside the verdict of the jury and for a new trial in said cause upon the grounds and for the reasons following, viz.:

1. (Here insert the grounds of the motion.)

And the said defendant then and there filed in said court the respective affidavits of the said defendant, and of E. F. and G. H., which were read on the hearing of the said motion and are all the papers and evidence offered, used or read on the hearing thereof. But the court, after hearing of the said motion of the defendant to set aside the verdict of the jury and for a new trial, overruled the same, and rendered judgment upon the said verdict. To which ruling and decision of the court the defendant by his counsel then and there excepted.'

And for as much as the matters set forth do not fully appear of record the defendant by his counsel tenders this bill of exceptions, and prays that the same may be signed and sealed by the judge of this court, pursuant to the statute in such case made and provided, which is done accordingly this day of, A. D. 18—.

1036. Amendment of a Bill of Exceptions.

Judge. [SEAL].

A party taking a

bill of exceptions, on discovering that it is imperfect, should on proper notice apply to the circuit court in open court to have it amended, and have the amendment appear from an order entered in term time, and then the amended record can be filed in the Supreme Court and error be assigned upon it." But an amended bill of exceptions filed in the Supreme Court subsequent to the filing of the record itself, without suggesting of a diminution of the record, and obtaining leave of the Supreme Court to file the same, will not become a part of the record nor be considered by the court. A bill of exceptions was on motion allowed to be amended by the judge who tried the cause by affixing his seal thereto, although the judge was not in office at the time of such amendment.1

1 A motion in arrest of judgment need not be inserted in the bill of exceptions, for it saves itself upon the record. Nichols ». People, 40 Ills., 396; Mix v. Nettleton, 29 Ills., 245.

2 Wallahan v. People, 40 Ills., 102; Goodrich v. City of Minock, 62 Ills., 122; Elliott v. Levings, 54 Ills., 213; Newman v. Ravenscroft, 67 Ills., 496 Elliott v. Levings, 54 Ills., 213.

4 Frazier v. Laughlin, 1 Gilm., 185.

2. MISCELLANEOUS MATTERS RELATING TO WRITS OF ERROR.

§ 1037. Writs of Error in Capital Cases. The statute provides that "in any prosecution by indictment for a capital offense, when the sentence is death, the party aggrieved by manifest and material error, appearing of record, may be relieved by a writ of error, in the following manner, to wit.:

"1. He shall obtain a certified copy of the record from the clerk, and a certificate from the judge who tries the cause, or from the prosecuting officer on the trial, that he is of the opinion that such record contains a full and true history of the proceedings on the trial.

"2. He shall present such transcript and certificate, with an assignment of the errors relied upon, to the Supreme Court, if in session, or to one of the judges thereof in vacation.

"3. If after inspecting such transcript, the court or judge is of opinion that there is reasonable cause for allowing a writ of error, and shall also be of the opinion that there is reasonable doubt as to the guilt of the defendant, it shall be granted by indorsement on the back of such transcript, with a direction that the same shall be a supersedeas.

"4. Upon the filing of such transcript and order, the clerk of the Supreme Court shall issue a supersedeas to stay the execution of the sentence of death until the further order of the court, but the prisoner shall not be discharged from jail."

§1038. When Affirmed Sentence.-"If the judgment is af firmed, the Supreme Court shall, by order, fix the time when the original sentence of death shall be executed, a copy of which order shall be sufficient authority to the sheriff for the execution of the prisoner at the time therein specified."

§1039. Writs of Error in Other Cases. "Writs of error in all criminal cases, where the sentence is not death, shall be considered as writs of right, and issued of course."

2

§ 1040. Supersedeas in Other Cases. "When a supersedeas is

'R. S., 414, § 458

Id., 415, § 459.

'Id., § 460.

desired, a transcript of the record, with a certificate and assignment of errors, must be presented to the Supreme Court, if in session, or to one of the judges thereof in vacation, in like manner as in cases where the sentence is death."

§ 1041. Issued, How. "If, after inspecting the transcript, the court or judge is of the opinion that there is reasonable cause for allowing a writ of error, and shall also be of the opinion that there is a reasonable doubt as to the guilt of the defendant, it shall be granted, by indorsement on the back of the transcript, with a direction that the same be made a supersedeas, and a supersedeas shall issue in like manner and with like effect as in cases where the sentence is death."

It cannot be as

§ 1042. What cannot be Assigned for Error. signed for error that the court refused to give instructions asked for by the adverse party. Where the court in modifying an instruction asked by the defendant, merely employed the language of the defendant used in another of his instructions, it was held that although the instruction as thus given was erroneous the defendant could not be allowed to complain.*

§ 1043. Letting to Bail." When the court or judge is of opinion that the party obtaining such writ of error ought to be bailed until the determination of the writ, and he is at the time in custody, the said court or judge may make an order to admit such prisoner to bail, upon his entering into a recognizance to the people of the state of Illinois, in such sum and with such security as the said court or judge shall prescribe, conditioned that the prisoner will appear at the next term of the court in which his trial took place, and at each subsequent term of said court on the first days thereof, until the determination of such writ of error, and will not at any of the terms of said court depart the court without leave, and

that in case the judgment is affirmed he will surrender himself to the sheriff or warden, or other officer from whose custody he is bailed."

FORM OF A RECOGNIZANCE ON OBTAINING A WRIT OF ERROR.

the town of of

in the county aforesaid, and E. F. and G. H. of the town in said county, personally came before I. J., sheriff of the said county, and severally and respectively acknowledged themselves to owe and be indebted to the People of the State of Illinois, in the sum of dollars, to be made and levied of their respective goods and chattels, lands and tenements to the use of the said people, if default shall be made in the following condition:

Whereas, the said C. D., at the term of the circuit court of said county of in the said state of Illinois, was duly convicted of (here insert a statement of the offense), on which conviction judgment has since been rendered against him; and whereas the said C. D., in pursuance of the statute in such case made and provided, has obtained a writ of error and supercedeas upon the said judgment from the Supreme Court of this state (or "from a judge of the Supreme Court of this state") and the said Supreme Court (or "said judge") is of the opinion that the said C. D. ought to be bailed until the determination of the said writ, the said C. D. now being in the custody of the said sheriff by virtue of the said conviction and judgment; and whereas the said Supreme Court (or “judge”) has made an order to admit the prisoner to bail, upon his entering into a recognizance to the People of the State of Illinois in the sum of dollars, with two sufficient sureties conditioned as herein,

Now, therefore, the condition of this recognizance is such that if the above-bounden C. D., shall personally be and appear at the next term of the said circuit court, and at each subsequent term of said circuit court on the first days thereof, until the determination of such writ of error, and shall not at any of the terms of the said circuit court depart the court without leave, and that in case the judgment is affirmed he will surrender himself to the said sheriff, then this recognizance to be void, otherwise to remain in full force and virtue.

Taken, subscribed and acknowledged) before, and approved by me on the day and year first above written.

C. D. [SEAL.]

E. F. [SEAL.]

G. H. [SEAL.]

I. J., Sheriff of

County.

'R. S., 415, § 463.

$1044. Recognizance Taken by Sheriff or Warden, how Returnable. "If the prisoner is in custody of the sheriff, he shall take the recognizance; if in the custody of the warden of the penitentiary, he shall take the recognizance. In either case the recognizance shall be returned to the next term of the court in which the prisoner was sentenced, and there entered of record, and such proceedings may be had thereon in case of breach of the conditions thereof as in other cases of recognizance."

§ 1045. Judgment Affirmed Proceedings Thereon." If the judgment is affirmed, the Supreme Court shall direct the court in which the original sentence was rendered to carry the same into effect, and shall give judgment against the plaintiff in error for costs, and execution may issue therefor from the Supreme Court."

$1046. Surrender of the Prisoner by Sureties on Judgment Affirmed. "When judgment is affirmed, if the prisoner was bailed from the custody of the sheriff, he shall be surrendered to the sheriff, who shall proceed to execute the judgment of the court; or if bailed from the custody of the warden, he shall be surrendered to such warden, to be dealt with according to the judgment of the court, and the warden receiving him shall immediately certify to the clerk of the court to which the recognizance is returned the fact of such surrender, which certificate shall be sufficient evidence of the compliance of the condition of the bond.""

§ 1047. Time of Service. - "When a prisoner has been committed to the penitentiary in pursuance of a sentence of imprisonment therein, or has been committed to the county jail. pursuant to a sentence of confinement therein, and the judg ment is affirmed, the time of service under the sentence of such prisoner shall commence to run from the time of such commitment, notwithstanding a supersedeas may have been granted: Provided, if any such prisoner is admitted to bail

1R. S., 415, § 464.

'Id., § 465. * Id., § 466.