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 judgment 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. § 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 time specified in this 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 the bill settled may apply by petition to the supreme court to prove the same, such application to be made in the mode and manner and under such regulations as that court may prescribe; and the bill when proven must be certified by the chief justice as correct, and filed with the clerk of the court in which the action was tried, and when so filed it has the same force and effect as if settled by the judge who tried the cause. If the judge who presided at the trial ceases to hold office before the bill is tendered or settled, he may nevertheless settle such bill, or the party may, as provided in this section, apply to the supreme court to prove the same. En. February 14, 1872. Am'd. 1873-4, 448; 1905, 761. See note to § 1171, ante. Cal. Rep. Cit. 51, 321; 53, 184; 55, 74; 56, 119; 73, 2; 74, 190; 76, 284; 77, 356; 78, 346; 78, 347; 108, 32; 119, 57; 121, 281; 121, 495; 122, 211; 136, 21; 136, 669; 138, 33. § 1175. What bill of exceptions is to contain. A bin of exceptions must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken; and the judge must, upon the settlement of the bill, whether agreed to by the parties or not, strike out all other matters contained therein. En. February 14, 1872. Cal. Rep. Cit. 51, 321; 52, 212; 76, 285; 76, 351; 80, 80, 488; 121, 281; 145, 68. 157; Crim. Prac. Act, sec. 436. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal. Rep. Cit. 28, 218. Crim. Prac. Act, sec. 437. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal. Rep. Cit. 28, 218. § 1176. Written charges need not be excepted to. When written instructions have been presented, and given, modified, or refused, or when the charge of the court has been taken down by the reporter, the questions presented in such instructions or charge need not be excepted to or embodied in a bill of exceptions; but the judge must make and sign an indorsement upon such instructions, showing the action of the court thereon, and certify to the correctness of the reporter's transcript of the charge; and thereupon the same, with the indorsements, become a part of the record, and any error in the action of the court thereon may be reviewed on appeal in like manner as if presented in a bill of exceptions. En. February 14, 1872. Am'd. 1905, 762. The purpose of this amendment is to correct imperfections and confusion in the language of the present section, and to more clearly point out the duty of the judge in noting his action upon instructions requested by the parties.-Code Commissioner's Note. Cal. Rep. Cit. 77, 180; 77, 181; 84, 581; 106, 36; 111, 259; 115, 161; 118, 329; 127, 547. Crim. Prac. Act, sec. 438. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal. Rep. Cit. 28, 218; 37, 276; 40, 287; 44, 598. By section 1207, subdivision 3, post, all charges given or refused, and the indorsements thereon, constitute a part of the judgment roll or record of the action. § 1177. Bills of exceptions in criminal actions, amendment of; settled, and time fixed for engrossment. If the bill of exceptions proposed does not substantially conform to the requirements of section 1175 of this code, the judge before whom the cause was tried may cause the same to be amended so as to conform to said section, or the adverse party may, within ten days after the receipt of such proposed bill, serve and file amendments thereto; the amendments herein provided for shall be thereafter settled by the judge upon a day to be fixed by him, not more than ten days after the service and filing of such proposed amendments; after said bill of exceptions shall have been settled as herein provided for, the judge may fix a time within which the same shall be engrossed by the party presenting the same and when so engrossed and signed by the judge, the same shall constitute the engrossed and final bill of exceptions in the action or proceeding. En. Stats. 1905, 475. § 1179. New trial defined. A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. En. February 14, 1872. Pen. Code-27 Cal. Rep. Cit. 72, 15; 139, 216; 143, 210; 143, 589. Crim. Prac. Act, sec. 439. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal. Rep. Cit. 4, 377; 4, 380; 46, 48. § 1180. Its effect. 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. En. February 14, 1872. Am'd. 1873-4, 449. Cal. Rep. Cit. 99, 231; 99, 232; 138, 485; 138, 486. § 1181. In what cases it may be granted. 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 re quired 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. En. February 14, 1872. Cal. Rep. Cit. 53, 184; 70, 472; 74, 487; 88, 490; 90, 199; 102, 332; 115, 304; 119, 2; 135, 371; 146, 130. Subd. 2-71, 398; 122, 183. Subd. 3-74, 483; 74, 485; 78, 334; 78, 335; 125, 507. Subd. 4-76, 575. Subd. 556, 118; 135, 373. Subd. 6-56, 118. Crim. Prac. Act, sec. 440. 290. En. 1851, 212. En. April 20, 1850. Rep. 1851, Cal. Rep. Cit. 18, 699; 21, 339; 33, 100; 43, 56. § 1182. Application for, when made. The application for a new trial must be made before judgment, and the order granting or denying the same must be immediately entered by the clerk in the minutes. En. February 14, 1872. Am'd. 1905, 697. The change consists in the addition of the words "and the order granting or denying the same must be immediately entered by the clerk in the minutes" after "judgment," and is designed to conform the section to the present practice.-Code Commissioner's Note. Cal. Rep. Cit. 80, 488; 98, 355; 135, 371; 142, 92; 142, 97. Crim. Prac. Act, sec. 441. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. CHAPTER VII. ARREST OF JUDGMENT. 1185. Motion in arrest of judgment. 1186. Court may arrest judgment without motion. § 1187. Effect of arresting judgment. 1188. Defendant, when to be held or discharged. § 1185. Motion in arrest of judgment. 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, on a plea of a former conviction or acquittal. It may be founded on any of the defects in the indictment or information mentioned in section ten hundred and four, unless the objec-. tion has been waived by a failure to demur, and must be made before or at the time the defendant is called for judgment. When determined, the order must be immediately |