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Crim. Prac. Act, sec. 428. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1163. Polling the jury. When a verdict is renilered, and before it is recorded, the jury may be polled at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further leliberation. En. February 14, 1872.

Cal Rep. Cit. 57, 101; 62, 520.

Crim. Prac. Act, sec. 429. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1164. Recording the verdict. When the verdict given is such as the court may receive, the clerk must immediately record it in full upon the minutes, read it to the jury, and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case. En. February 14, 1872.

Cal. Rep. Cit. 57, 98; 57, 101.

Crim. Prac. Act, sec. 430. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

§ 1165. Defendant, when to be discharged. If judgment of acquittal is given on a general verdict, and the defendant is not detained for any other legal cause, he must be discharged as soon as the judgment is given, except where the acquittal is because of a variance between the pleading and proof, which may be obviated by a new indictment or information, the court may order his detention, to the end that a new indictment or information may be preferred, in the 'same manner and with like effect as provided in section one thousand one hundred and seventeen. En. February 14, 1872. Am’d. 1880, 25. Cal. Rep. Cit. 61, 140; 64, 263; 70, 65; 79, 179; 79, 18!:

91, 643; 118, 27.

Crim. Prac. Act, sec. 431. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 38, 476.
Jeopardy: See ante, sec. 687.

§ 1166. Proceedings upon conviction or special verdict. If a general verdict is rendered against the defendant, or a special verdict is given, he must be remanded, if in custody, or if on bail he may be committed to the proper oficer of the county to await the judgment of the court upon the verdict. When committed, his bail is exonerated, or if money is deposited instead of bail, it must be refmmied to the defendant. En. February 14, 1872.

Cal. Rep. Cit. 68, 182.

Crim. Prac. Act, sec. 432. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Bail: See post, secs. 1268 et seq.

§ 1167. Proceedings on acquittal on ground of insanity. If the jury render a verdict of rcquittal on the ground of insanity, the court may order a jury to be siunionel from the jury list of the county, to inquire whether the defendant continues to be insane. The court inay cause the same witnesses to be summoned who testified on the trial, ind other witnesses, and direct the district attorney to conduct the proceedings, and counsel may appear for the detenılant. The court may direct the sheriff to take the defendant and retain him in custody until the question of continuing insanity is determined. If the jury find the defer laut insane, he shall be committed by the sheriff to the state insans asylum. If the jury find the defendant sane, he shall be discharged. En. Stats. 1873-4, 446.

Inquiry into insanity of defendant before trial or after conviction. See post, secs. 1367 et seq.

CHAPTER V.

BILLS OF EXCEPTION.

§ 1170. To what decisions exceptions may be taken. § 1171. When to be settled and signed. § 1172. Exceptions to decision of court by either party. § 1173. Exceptions to decision of the court by thọ defendant. § 1174. Exceptions, how settled. § 1175. What bill of exceptions is to contain. § 1176. Written charges need not be excepted to. § 1177. Bills of exception in criminal actions, amendment of; settled

and time fixed for engrossment.

§ 1170. To what decisions exceptions may be taken. On the trial of an indictment or information, exceptions may be taken by the defendant to a decision of the court;

1. In disallowing a challenge to the panel of the jury, or to an individual juror for implied or actual bias;

2. In admitting or rejecting testimony on the trial of a challenge to a juror for actual bias;

3. In admitting or rejecting 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. En. February 14, 1872. Am’d. 1873-4, 447; 1880, 25; 1901, 81. Cal. Rep. Cit. 49, 169; 51, 470; 51, 496; 53, 184; 53, 603;

56, 535; 59, 355; 61, 549; 61, 553; 70, 11; 83, 381; 87, 120; 96, 126; 96, 134; 96, 137; 96, 140; 115, 167; 123, 491; 124, 553; 132, 142; 134, 535; 135, 373; 135, 375; 142, 93.

Subd. 2–123, 488. Subd. 3—134, 544; 135, 374; 145, 738.

Crim. Prac. Act, sec. 433. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 28, 218; 45, 142.
Challenges to jury: See ante, secs. 1055 et seq.
Trial of challenges: See ante, secs. 1078 et seq.
Rules of evidence. See ante, sec. 1102.

§ 1171. When to be settled and signed. When the defendant desires to have exceptions taken at the trial settled in a bill of exceptions, the draft of a bill must be prepared by him, and presented to the judge for settlement within ten days after judgment has been entered against him, or, if the judge is absent from the county, or ill, so that such presentation cannot be made, the draft must, within that period, be delivered to the clerk for the judge. Notice in writing of the intended presentation of such draft to the judge, or of the delivery thereof to the clerk, must be served upon thể district attorney at least to days before such presentation or delivery. When received by the clerk, he must note thereon the date of such receipt, and transmit or deliver the same to the judge at the earliest period practicable. The judge must, immediately upon the draft being presented or delivered to him, designate a time for the settlement of the bill, and, if the parties are not present, require the clerk to notify them in writing of such date. The time so fixed must not be changed for inconvenience to a party, except upon good cause, shown by affidavit of necessity therefor. When settled and engrossed, the bill must be signed by the judge and filed with the clerk. En. February 14, 1872. Am’d. 1873-4, 447; 1881, 6; 1905, 761. 1171, 1174. The design of the amendment to these sections is to bring about as far as possible an avoidance of the delay now so common in getting criminal cases to a hearing in the Supreme Court, and to require bills of exceptions in criminal cases to be settled as expeditiously as is compatible with the circumstances of the case. The phraseology of the present section is changed in certain respects to more clearly express its purpose. The clerk is required, upon receipt of the draft to note such receipt thereon; and the judge, upon receipt thereof, is required to immediately designate a time for settlement and have the parties notified thereof, if not present. The time so fixed cannot be changed for the convenience of a party, except upon good cause shown by affidavit. -Code Commissioner's Note. Cal. Rep. Cit. 51, 470; 53, 184; 53, 423; 53, 425; 55, 73;

76, 514; 77, 356; 78, 406; 86, 157; 94, 506; 106, 645; 106, 646; 115, 167; 122, 210; 135, 373; 136, 20; 136,

669; 136, 670; 142, 93. Crim. Prac. Act, sec. 434. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212.

Cal. Rep. Cit. 28, 218.

§ 1172. Exceptions to decision of court b either party. Exceptions may be taken by either party to the decision of à court or judge upon a matter of law:

1. In granting or refusing a motion to set aside an indictment or information.

2. In allowing or disallowing a demurrer to an indictment or information,

3. In granting or refusing a motion in arrest of judgment. 4. In granting or refusing a motion for a new trial.

5. In making, or refusing to make, an order after judg. ment affecting any substantial right of the parties. En. February 14, 1872. Am’d. 1885, 58. Cal. Rep. Cit. 55, 74; 56, 535; 65, 175; 107, 478; 115, 161;

115, 167;. 121, 495; 132, 142; 138, 32. Subd. 5—136,

21. Arrest of judgment: See post, secs. 1185-1188. New trial: See post, secs. 1179-1182.

f 1173. Exceptions to decision of the court by the defendant. Exceptions may be taken by the defendant to a decision of the court upon a matter of law

1. In refusing to grant a motion for a change of the place of trial.

2. In refusing to postpone the trial on motion of the defendant. En. February 14, 1872. Cal. Rep. Cit. 55, 74; 56, 535; 65, 175; 115, 167; 132, 142;

138, 33.

§ 1174. Exceptions, how settled. When a party desires to have an exception mentioned in the last two sections settled in a bill of exceptions, the draft of a bill must, within ten days after the order or ruling complained of is made, be prepared and presented or delivered by him on notice as provided in section eleven hundred and seventy-one, and thereupon the same proceedings must be had for the settlement of such proposed bill in all respects as are provided in the last-mentioned section. The ne specified in his section and section eleven hundred and seventy-one, within which the draft of a bill of exceptions must be presented to the judge or delivered to the clerk, may be extended for a reasonable period by the trial judge, or, in his absence from the county or inability to act, by a justice of the supreme court, but only for good cause and upon affidavit showing the necessity therefor, presented upon written notice of at least two days to the adverse party, who shall have the right to file counter affidavits. In no case can the time be extended by stipulation of the parties. If the judge in any case refuses to allow an exception in accordance with the facts, the party desiring bill settled may apply petition to the supreme court to prove the same, such application to be made in the

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