offense of di! R. 4835. SEC. 4465. Upon an indictment for an offense consisting of Finding an different degrees, the jury may find the defendant not guilty of ferent degree. the degree charged in the indictment, and guilty of any degree c. 51, 2918. inferior thereto, or of an attempt to commit the offense, if punishable by indictment. Although the offense consists of different degrees, and defendant is not found guilty of any one of the degrees, he may still be convicted of an offense necessarily included in that for which he is indicted, as provided in the following section: Gordon v. The State, 3-410. Thus, held, that though manslaughter is not a degree of murder, but a distinct offense, it is necessarily included in the crime of murder: The State v. Clemons, 51274. offense be not indictable, but triable Where defendant is put on trial for the higher degree of an offer se, and is convicted of a lower, and judgment thereon is reversed on appeal. he cannot again be put on trial for a higher degree than that of which he was convicted: The State v. Tweedy, It seems that the last clause of the 11-350; The State v. Clemons, 51section, if punishable by indict-274; and see notes to Coast. art. 1, ment," relates alone to the preceding clause, an attempt to commit the offense:" The State v. Jarvis, 21-41. Although the inferior degree of the $ 12. In case of reasonable doubt as to the degree of the offense, defendant is to be convicted of the lower degree: See § 4429. than charged. C. '51, 3039. SEC. 4466. In all other cases the defendant may be found Other offense guilty of any offense, the commission of which is necessarily R. 4836. included in that with which he is charged in the indictment. If an indic'ment charge an offense | commit the one is included in an asunder a section of the law claimed to have been violated, whatever offense is necessarily included in that charge may be pur ished, though the indictment contain no words specifically designating the offense so included: Benham v. The State, 1-542. sault with intent to commit the other: The State v. Schele, 52 The crime of rape necessarily includes the crime of an assault with intent to commit rape: The State v. McLaughlin, 44-82; and also a simple assault: The State v. Vinsant, 49-241. Therefore, held, that as every in-sault: tentional maiming and disfiguring 608. includes an assault and battery, a defendant indicted for the former offense might be convicted of the latter, although no assault was charged: Ibid. Held, also, that a simple assault is necessarily included in a charge of an assault with intent to commit a bodily injury: Orton v. The State, 4 Gr. 140; and that, on an indictment for murder, defendant may be found guilty of manslaughter: Gordon v. The State, 3-410; and that a person indicted for an assault with intent to commit murder, may be convicted of assault and battery: Dixon v. The State, 3-416; or of a simple assault: The State v. Shepard, 10-126; The State v. White, 45-325; and that, under an indictment for burglary, a defendant may be convicted of the offense of entering, etc., defined in § 3894: The State v. Maxwell, 42-208. Manslaughter is included in murder, and an assault with intent to Though an indictment charging merely an assault with intent to commit murder, might not include the commission of an assault and battery, yet, where an indictment charging the former crime charged the commission thereof by assault and battery, held, that a conviction for assault and battery was warranted: The State v. Graham, 51-72. Under an information charging defendant with the second offense and prior conviction under § 1540 (for the unlawful sale of intoxicating liquors) he may be found guilty of the first offense: The State v. Ensley, 10–149. The jury should be instructed that they may find the defendant guilty of any lower offense included in the one Indictment against several: finding of jury. R. 24887. C. '51, 3040. cient. charged: The State v. Walters, 45- A defendant put on trial for an | Const. art. 1, § 11. If defendant is found guilty of a lesser offense included in the one for which he is put on trial, such conviction operates as an acquittal of the offense for which he was indicted, and if on appeal judgment is reversed, he can only be tried a second time for the offense of which he was convicted: The State v. Tweedy. 11350; The State v. Clemons, 51-274. Compound offenses may be included in one indictment: See § 4300. SEC. 4467. On an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly, and the case as to the rest may be tried by another jury. SEC. 4468. If the jury render a verdict which is neither a genVerdict insuffi- eral nor special verdict, the court may direct them to reconsider it, and it shall not be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury, whether to render a general verdict or to find the facts specia ly and leave the judgment to the court. C. '51, ¿3041. Informal ver- C. '51, 3042. Verdict ren- C. 51, ¿ 3043. If any juror If defense be Defendant dis- Section applied: The State v. Max- | well, 42–208, 214. SEC. 4469. If the jury persists in finding an informal verdict, from which, however, it can be understood that their intention is to find for the defendant upon the issue, it shall be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly find against the defendant upon the issue, or judgment be given against him upon a special verdict. SEC. 4470. When a verdict is rendered, and before it is recorded, the jury may be polled on the requirement of either party; in which case they shall be severally asked whether it be their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation. SEC. 4471. When the verdict is given, and is such as the court may receive, the clerk may immediately enter it in full upon the record, and must 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 record, and the jury again sent out. But if no disagreement be expressed, the verdict is complete and the jury must be discharged from the case. Sec. 4472. If the defense be the insanity of the defendant, the jury must be instructed, if they acquit him on that ground, to state that fact in their verdict. The court may thereupon, if the defendant be in custody, and his discharge is deemed dangerous to the public peace and safety, order him to be committed to the Iowa insane hospital, or retained in custody until he becomes sane. SEC. 4473. If judgment of acquittal be given on a general verdict, and the defendant be not detained for any other legal cause, he must be discharged as soon as the judgment is given. SPECIAL VERDICT. defined. SEC. 4474. A special verdict is that by which the jury finds Special verdict the facts only, leaving the judgment to the court. It must pre- R. 24830. sent the conclusions of fact as established by the evidence and C. '51, 3031. 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. For similar provision in civil cases, | see § 2807. R. 24831. SEC. 4475. The special verdict must be reduced to writing by Same. the jury or in their presence, entered upon the minutes of the C. 51,235. court, read to the jury and agreed to by them, before they are discharged. Same. SEC. 4476. The special verdict need not be in any particular form, but shall be sufficient if it present intelligibly the facts C. 51, 1⁄2 3636. found by the jury. SEC. 4477. 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 offense charged in the indictment, or of any other offense of which he could be convicted in law under that indictment, judgment shall be given accordingly. But if the facts found do not prove the defendant guilty of the offense charged, or of any offense of which he could be so convicted under the indictment, judgment of acquittal must be rendered; 2. If the plea be of a former conviction or acquittal of the same offense, the court must give judgment of conviction or acquittal according as the facts prove or fail to prove the former conviction or acquittal. Pleas of not guilty, and former | ant, and he did not ask leave to plead conviction or acquittal, may be plead-over, held, that a judgment of coned together (see § 4359, ¶3), and viction was proper without further where only the latter plea was inter- trial as to his guilt: The State v. posed, and found against the defend- Green, 16-239. Judgment Verdict insuffi C. '51, 3038. SEC. 4478. If the jury do not, in a special verdict, pronounce cient. affirmatively or negatively on the facts necessary to enable the R1834, court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact from the evidence as established to their satisfaction, the court may order them to retire for further deliberation. CHAPTER 30. OF BILLS OF EXCEPTION. Exceptions. SECTION 4479. On the trial of an indictment, exceptions may be R. 24844. taken by the state, or by the defendant, to any decision of the C. 51, 3016. court upon matters of law, in any of the following cases: 1. In disallowing a challenge to an individual juror; How to be construed. R. 24845. 2. In admitting or rejecting witnesses or evidence on the trial of any challenge; 3. In admitting or rejecting witnesses or evidence, or in deciding any matter of law, not purely discretionary, on the trial of the issue. As to exceptions in civil cases, see!§§ 2831 to 2836. SEC. 4480. Nothing herein contained is to be construed so as to deprive either party of the right of excepting to any action or decision of the court which affects any other material or substantial right of either party, whether before or after the trial of the indictment, or on such trial. SEC. 4481. The office of a bill of exceptions is to make a part Office of bill of of the proceedings or evidence appear of record which would not otherwise so appear. exceptions. R. 4846. Applied: The State v. Fay, 43-651. SEC. 4482. All papers pertaining to the cause and filed with Papers deemed the clerk, and all entries made by the clerk in the record book rt of record. 24847. pertaining to them, and showing the action or decision of the court upon them, or any part of them, are to be deemed parts of the record, and it is not necessary to except to any action or decision of the court so appearing of record. SEC. 4483. Either party may allege an exception to any decision or action of the court, on any application of either party, may except to which may be, and is made orally to the court, in any stage of the Either rav " on R. 2010. proceedings upon which the decision or action of the court is not required to be, and is not, entered in the record book, and reduce the same to writing, and tender the same to the judge, whose duty it is to sign it; and if he sign the same, it shall be filed with the clerk and thereupon become a part of the record of the cause; but if the judge refuse to sign it, such refusal must be stated at the end thereof; and it may then be signed by two or more attorneys or officers of the court, or disinterested bystanders, and sworn to by the persons so signing the same, and filed with the clerk, and it shall thereupon become a part of the record of the cause. SEC. 4484. The judge shall be allowed one clear day to examine Time allowed the bill of exceptions, and the party excepting shall be allowed three clear days thereafter to procure the signatures and file the to examine. R. 24819. May be modi- Time allowed to prepare. R. 4851. same. [The word "clear" in the first and also in the third line, as in the original, is omitted in the printed code. In § 4421, “four days" is substituted in the printed code for three clear days" in the original, and the former express on is retained in this work as probably synonymous, but here the omission in the printed code of the word "clear," without change in the number of days, is certainly a material alteration. See similar change in § 4496.] SEC. 4485. If the judge and the party excepting can agree in modifying the bill of exceptions, it shall be modified accordingly. SEC. 4486. Time must be given to prepare the bill of exceptions when it is necessary. When it can reasonably be done, it shall be settled at the time of taking the exception. CHAPTER 31. OF NEW TRIAL. SECTION 4487. A new trial is a re-examination of the issue in Definition. the same court before another jury, after a verdict has been given. 51, 23050. R. 4852 SEC. 4488. The granting of a new trial places the parties in Effect. the same position as if no trial had been had. All the testimony R. 4853. must b produced anew and the former verdict cannot be used or referred to either in the evidence or in argument. C. '51, 3051. SEC. 4489. The court may grant a new trial for the following Causes for. causes, or any of them: 1. When the trial has been had in the absence of the defendant, if the indictment be for a felony; 2. When the jury has received any evidence, paper, or document out of court not authorized by the court; 3. When the jury have separated without leave of the court, after retiring to deliberate upon their verdict, or have been guilty of any misconduct tending to prevent a fair and due consideration of the case; 4. When the verdict has been decided by lot, or by 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 material matter of law; But no 6. When the verdict is contrary to law or evidence. more than two new trials shall be granted for this cause alone; 7. When the court has refused properly to instruct the jury; 8. When from any other cause the defendant has not received a fair and impartial trial. Newly discovered evidence is not a ground for new trial in criminal cases: The State v. Bowman, 45-418. 421. Thas a juror left the jury-room and was temporarily absent for a proper purpose, in charge of a deputy sheriff, held, not sufficient ground for granting a new trial: Ibid. The drinking of spirituous liquors during the time when a jury is out for the purpose of deliberating upon their verdict, is sufficient misconduct to reverse a judgment on such verdict on appeal: The State v. Baldy, 17–39. And see other cases under § 2837, ¶ 2. The supreme court will but cautious| ly interfere with verdicts, when it is claimed that they are against the evidence: The State v. Collins, 20-85; but where a conviction is clearly contrary to the weight of evidence, it should be set aside: The State v. Wolsey, 3-251; and in a particular case the action of the court below in overruling a motion for a new trial on the ground of insufficiency of evidence was reversed: The State v. Hilton, 22-241. A new trial was granted on appeal, on the ground that it appeared that under the peculiar circumstances of Greater latitude is allowed a party the case the prisoner had not had a claiming a new trial in the supreme full, fair, and impartial trial (as procourt, in a criminal, than in a civil vided in T 8), although no error of action: The State v. Tomlinson, 11-law was sufficiently shown: Trulock 401. v. The State, 1-515. R.4854. SEC. 4490. The application for a new trial can be made only Application : by the defendant, and must be made before judgment. when made. R. 2 4855. Section applied: The State v. Bixby. | necessary at the argument and deter- C. 51, 2 3053. 39-465. mination of a motion for new trial It would seem that the presence of (§ 4351): The State v. Decklotts: 19defendant, accused of a felony, is not | 447. |
