When convict restored, governor to order execution, etc.

SEC. 34. When convict restored, governor to order execution. The sheriff shall immediately transmit a certified copy of such finding to the governor, who may, as soon as he is convinced that the convict has become of sound mind, issue a warrant appointing a time for his execution. (Sayler, 2181, § 189.)

SEC. 35. Proceedings when a female convict appears to be with child. If a female convict sentenced to death appear to be pregnant, the sheriff shall, in like manner, summon a jury of six persons, who, on like proceedings being had as in the case of an insane convict, shall return a finding signed by them. (Sayler, 2181, § 190.)

SEC. 36. When convict no longer pregnant, governor to order execution. If by such finding it appear that such female convict is with child, the sheriff shall in like manner suspend the execution of her sentence, and shall transmit the finding to the governor, who, on being satisfied that such woman is no longer pregnant, shall issue a warrant appointing a day for her execution. (Sayler, 2181, § 191.)

For what causes a new trial granted.

SECTION.

CHAPTER VIII.

NEW TRIALS, MOTIONS IN ARREST, AND ERROR.

SECTION.

1. For what causes a new trial 11. When judgment may be rendered granted.

2. When application to be made.

3. What causes for new trial must be sustained by affidavits.

4. When a motion in arrest of judgment may be granted.

5. When it may not be made.

6. Effect of allowing motion in arrest of judgment.

7. In what court judgment may be reviewed.

8. Transcripts to be furnished on demand, and tender of fees, etc.

9. Proceedings to be by petition in

error.

10. Summons in error to issue, and how served.

therein.

NEW TRIALS.

SECTION 1. For what causes a new trial granted. A new trial, after a verdict of conviction, may be granted on the application of the defendant, for any of the following reasons affecting materially his substantial rights:

1. Irregularity in the proceedings of the court, jury, or the prosecuting attorney, or the witnesses for the state, or for any order of the court, or abuse of discretion, by which the defendant was prevented from having a fair trial.

2. Misconduct of the jury, or of the prosecuting attorney, or of the witnesses for the state.

3. Accident or surprise which ordinary prudence could not have guarded against.

When application to be made.

4. That the verdict is not sustained by sufficient evidence, or is contrary to law!

5. Newly discovered evidence material for the defendant, which he could not, with reasonable diligence, have discovered and produced at the trial.

6. Error of law occurring at the trial. (Sayler, 2181, § 192.)

SEC. 2. When application to be made. The application for a new trial shall be by motion, upon written grounds, which shall be filed at the term the verdict was rendered, and except for the cause of newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, within three days after the verdict was rendered, unless unavoidably prevented. (Sayler, 2184, § 193.)

SEC. 3. What causes for new trial must be sustained by affidavits. The causes enumerated in subdivisions two, three, and five of section one, of this chapter, must be sustained by affidavits showing their truth, and may be controverted by affidavits. (Sayler, 2184, § 194.)

MOTION FOR A NEW TRIAL.

[Title.] Indictment for

And now comes the said A. B. and moves the court for a new trial in this cause, for the following reasons, to wit:

1. Irregularity in the proceedings of the court [or jury, or prosecuting attorney], in this, to wit: [state the irregularity.]

2. Error of law occurring at the trial, in this, to wit:

Give in the same manner, according to the facts, any reasons mentioned in the statute.

J. S., Attorney for the Defendant.

ORDER GRANTING NEW TRIAL.

[Title.] Indictment for.

This cause being heard on the motion for a new trial, the court, on consideration, and for good cause shown, do grant the same. The said verdict is accordingly vacated, and a new trial granted.

1 See Crandall v. State, 28 Ohio St. 479.

When a motion in arrest of judgment may be granted.

When the motion is overruled, sentence may be passed at once, and put in the same entry.

Abandonment of motion for new trial; presumed.-Where it appears from the record in the case that, after the verdict of guilty was returned, the defendant filed his motion in writing for a new trial, but it does not appear what disposition, if any, was made of the motion; that afterward, upon inquiry, the defendant stated to the court that he had nothing further to say why sentence should not be pronounced, and thereupon the court, without objection from the defendant, proceeded to judgment, and sentenced the defendant to imprisonment in the penitentiary for a term of years, the judgment can not be reversed on the ground that the sentence was passed pending the motion for a new trial. Upon such a record it must be presumed that the motion for a new trial was abandoned before judgment. (Blackburn v. State, 25 Ohio St. 554.)

Effect of granting new trial; one offense; several counts.-Where indictment is for but one offense, though charged in several counts in different ways, and the defendant is convicted upon some of the counts and acquitted upon others, the granting of a new trial upon his motion opens the case for retrial upon the counts on which he was acquitted as well as those on which he was convicted. (Lesslie v. State, 18 Ohio St. 390; Jarvis v. State, 19 Ohio St. 585.)

Effect of granting new trial; homicide.-Where, on a trial for murder, the defendant is found guilty of a lower degree of homicide than the highest degree charged in the indictment, and, on his motion, a new trial is granted, the effect of granting the new trial is to set aside the whole verdict, and leave the case for retrial upon the same issues as on the first trial. (State v. Behimer, 20 Ohio St. 572.)

MOTIONS IN ARREST.

SEC. 4. When a motion in arrest of judgment may be granted. A motion in arrest of judgment may be granted by the court for either of the following causes :

1. That the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court.

2. That the facts stated in the indictment do not constitute an offense. (Sayler, 2184, § 195.)

Defective indictment; plea of guilty.-Notwithstanding the plea

When it may not be made, etc.

of guilty, the sentence must be reversed if the indictment be defective. (Davis v. State, 19 Ohio St. 270.)

MOTION IN ARREST OF JUDGMENT.

[Title.] Indictment for

And now comes the said A. B. and moves the court to arrest judgment in this case for the following cause [or causes], to wit:

That the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court, because [etc., state why not in the jurisdiction].

Or say, That the facts stated in the indictment do not constitute an offense, because [etc., state the defect in the indictment].

SEC. 5. When it may not be made. No judgment can be arrested for a defect in form, nor shall any motion in arrest of judgment be made after three days after the verdict was rendered. (Sayler, 2185, §§ 196, 198.)

SEC. 6. Effect of allowing motion in arrest of judgment. The effect of allowing a motion in arrest of judgment shall be to place the defendant in the same position with respect to the prosecution as before the indictment was found. If from the evidence on the trial there be reason to believe the defendant guilty of an offense, the court shall order him to enter into a recognizance, with sufficient surety, conditioned for his appearance at the first day of the next term of the court; otherwise the defendant shall be discharged. (Sayler, 2185, § 197.)

Sentencing before disposing of motion in arrest.-Where the court proceeded to sentence a party without disposing of a motion in arrest of judgment, it was held that this irregularity afforded no ground for reversing the judgment, unless the points made in the motion were such as to require the arrest. (Young v. State, 6 Ohio, 435.)

ENTRY-MOTION IN ARREST GRANTED; ORDER FOR RECOGNIZANCE. [Title.] Indictment for.

This cause being heard on the motion in arrest of judgment, the court, upon good cause shown, allows the same."