some form from which it can be clearly understood that the intent of the jury is either to render a general verdict or to find the facts specially, and to leave the judgment to the court.

Informal verdict.-When the verdict returned by the jury is informal, it is the duty of the court to explain to them its defects, and direct them to put it in proper form: People v. Dick, 34 Cal. 663; People v. Jenkins, 56 Id. 4. Informality not vitiating: See People v. Gilbert, 57 Id. 96.

Until the jury are discharged a verdict may be amended, but not after: People v. Ah Ye, 31 Cal. 451; People v. Jenkins, 56 Id. 4. The direction to the jury by the court, that there is an informality in their verdict, and that they shall retire and correct it, need not be in writing: People v. Bonney, 19 Id. 426.

1162. When judgment may be given on informal verdict.

SEC. 1162. If the jury persist in finding an informal verdict, from which, however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must 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 is given against him on a special verdict. Informal verdict, when sufficient.-An informal verdict in a criminal case is sufficient if it can be clearly understood as being a general verdict of guilty or not guilty. Thus, a verdict reading, "We, the undersigned jurors,

1163. Polling the jury.

find a verdict of murder in the second degree," is a good verdict against the defendant of guilty of the crime of murder in the second degree: People v. McCarty, 48 Cal. 557.

SEC. 1163. When a verdict is rendered, 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 deliberation.

Verdict recorded before read.-Although it is irregular for the court to order the verdict to be recorded before it is read or declared, yet it is not such an irregularity as prejudices any substantial right of defendant: People v. Nichols, 62 Cal. 518.

Polling. The right of polling the jury may be demanded by either party, or the court may direct it on its own motion: Harris v. State, 31 Ark. 196; State v. Young, 77 N. C. 498. The proper time to demand this right is after the publication of the verdict and before the recording of the verdict and discharge of jury: People v. Nichols, 62 Cal. 518; Malone v. State, 49

1164. Recording the verdict.

Ga. 211; Tilton v. State, 52 Id. 478. Each of the jurors should be asked, "Is this your verdict?" State v. Bogain, 12 La. Ann. 264; State v. John, 8 Ired. L. 330. If any juror dissent, which he may of right do, the verdict is without validity, and the jury must again be sent out: United States v. Potter, 6 McLean, 189. But if the dissenting juror agree to the verdict before the jury again retire, such verdict may be recorded without their again retiring: Gose v. State, 6 Tex. App. 121.

Polling jury: See an article in 1 Crim Law. Mag. 170, giving a sketch of the history and prevalence of this practice.

SEC. 1164. 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.

Failure to record verdict in presence of jury. Where the verdict is read to the jury, and they are asked if that is their verdict, to which they all assent, the failure to record the written verdict before it is read and assented to, and the jury discharged, is an irregularity; yet, unless it appear that defendant was thereby prejudiced in respect to a substantial right, such failure is not fatal to the judgment: People v. Gilbert, 57 Cal. 96; People v. Beck, 58 Id. 212. See People v. Smith, 59 Id. 601, where it was held to be an immaterial circumstance that the verdict was transcribed into the bound

minute and order book after the jury was discharged.

Verdict, how recorded.-Where the verdict, after finding defendant guilty, contained a recommendation of mercy, and the court directed it to be recorded without the recommendation, it was held not to be error: People v. Lee, 17 Cal. 76.

Verdict should be read, then recorded. Upon the return of the jury into court with their verdict, the court should first read it, or state its contents, and then direct the clerk to record it. Recording it first, however, is an

irregularity which does not affect any substan- read will not be disturbed: Feople v. Nichols tial right of the defendant, and a judgment 62 Cal. 518. rendered upon a verdict recorded first and then

1165. Defendant, when to be discharged or detained after acquittal.

SEC. 1165. 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 eleven hundred and seventeen. [Amendment, approved April 9, 1880; Amendments 1880, 25 (Ban. ed. 171); took effect immediately.]

Jeopardy: Sec. 687, and note.

Acquittal on the ground of variance, practice: See People v. Allen, 61 Cal. 140.

1166. Proceedings upon general verdict of conviction or a special verdict.

SEC. 1166. 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 officer 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 refunded to the defendant. Stats. 1851, 212.

1167. Proceedings on verdict of acquittal on ground of insanity.

SEC. 1167. If the jury render a verdict of acquittal on the ground of insanity, the court may order a jury to be summoned from the jury list of the county to inquire whether the defendant continues to be insane. The court may cause the same witnesses to be summoned who testified on the trial, and other witnesses, and direct the district attorney to conduct the proceedings, and counsel may appear for the defendant. 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 defendant insane, he shall be committed by the sheriff to the state insane asylum. If the jury find the defendant sane, he shall be discharged. [New section, approved March 30, 1874; Amendments 1873-4, 446; took effect July 1, 1874.]

Inquiry into insanity of defendant before trial or after conviction: Secs. 1367 et seq.

CHAPTER V.

BILLS OF EXCEPTION.

1170. Exceptions may be taken in what cases.

SEC. 1170. 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 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. [Amendment, approved April 9, 1880; Amendments 1880, 25 (Ban. ed. 171); took effect immediately.]

1171. Exceptions, when to be presented and signed.

SEC. 1171. When a party desires to have the exceptions taken at the trial settled in a bill of exceptions, the draught of a bill must be prepared by him and presented, upon notice of at least two days to the district attorney, to the judge for settlement within ten days after judgment has been rendered against him, unless further time is granted by the judge, or by a justice of the supreme court, or within that period the draught must be delivered to the clerk of the court for the judge. When received by the clerk, he must deliver it to the judge, or transmit it to him at the earliest period practicable. When settled, the bill must be signed by the judge and filed with the clerk of the court. [Amendment, approved February 18, 1881; Statutes and Amendments 1881, 6.]

presenting them before: People v. Martin, 6 Cal. 477; People v. Woppner, 14 Id. 437; People v. Lee, Id. 510; People v. White, 34 Id. 183; People v. Sprague, 53 Id. 432. Two days' notice must be given to the district attorney of the time that a bill will be presented for settlement, and unless such notice is given the judge must refuse to settle it: People v. Sprague, Id. 422. The time to prepare a bill may be extended by the judge who tried the case or by a justice of the supreme court, and if presented within such time, and the judge should refuse to settle it, he may be compelled to do so by a writ of mandate: People v. Keyser, Id. 183. See People v. Romero, 18 Id. 89; People v. Kahl, Id. 432. After being settled it must be signed by the judge and filed. Signing by the district attorney, or by the attorneys who tried the case, or signing a stipulation annexed thereto that it is correct, is insufficient, and if not otherwise signed, it will be disregarded on appeal: People v. Ferguson, 34 Id. 309; People v. Trim, 37 Id. 274; People v. Armstrong, 44 Id. 326. In moving for new trials in criminal cases, it is not necessary that a bill of exceptions should be prepared before the motion is made, but it

may be prepared after the motion has been determined at any time within ten days after the entry of the judgment: People v. Fisher, 51 Id. 319; People v. Keyser, 53 Id. 184; People v. Hewell, 6 Pac. C. L. J. 448. If settled before the motion is made it will be disregarded: Peo ple v. Ah Fat, 47 Cal. 631. Where a case was tried by one judge, and a motion for a new trial heard by his successor in office, a bill settled by the latter is properly authenticated: People v. Hodgdon, 55 Îd. 72.

Reporters' notes.-As evidence, see sec. 1102 in note. The notes of the phonographic reporter form no part of a bill of exceptions, unless embodied therein or referred to in the bill so as to identify them: People v. Taing, 53 Cal. 602. Before incorporating such notes in a bill, all matters should be eliminated therefrom which are not necessary to illustrate the points to be presented on appeal. Unless such matters are eliminated, it is the duty of the court, not only to refuse to settle the bill, but to strike it from the files: People v. Tetherow, 40 Id. 286; People Padillia, 42 Id. 535; People v. Getty, 49 Id. 584; People v. Sprague, 53 Id. 423; People v. Taing, Id. 602.

1172. Exceptions not taken on the trial, but which may be taken by both parties. SEC. 1172. Exceptions may be taken by either party to the decision of a 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 judgment affecting any substantial right of the parties. [Amendment, approved March 10, 1885; Statutes and Amendments 1885, 58.]

Subd. 1.-Motion to set aside indictment, on the ground that the arresting officer was a witness before the grand jury, a witness in the case, and an interpreter for other witnesses, denied: People v. Ramirez, 56 Cal. 533. Exceptions: Sec. 1170, note.

Bill of exceptions: Sec. 1171, and note. Bill of exceptions, contents of: Sec. 1171, and note.

Bill of exceptions, settlement of: Sec. 1171, and note.

1173. Exceptions not taken on the trial, but which may be taken by the defendant. SEC. 1173. 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. Refusing to postpone trial.—An exception to an order of the court denying the defendant's motion for a continuance can only be presented on appeal by a bill of exceptions. If

affidavits are used on the motion, they should be incorporated in the bill, or in some mode clearly identified as having been read on the hearing: People v. Weaver, 47 Cal. 106.

1174. Proceedings on settlement of bill of exceptions.

SEC. 1174. Where a party desires to have the exceptions mentioned in the last two sections settled in a bill of exceptions, the draught of a bill must be prepared by him and presented, upon notice of at least two days to the adverse party, to the judge, for settlement, within ten days after the order or ruling complained of is made, unless further time is granted by the judge, or by a justice of the supreme court, or within that period the draught must be delivered to the clerk of the court for the judge. When received by the clerk, he must

deliver it to the judge, or transmit it to him at the earliest period practicable. When settled, the bill must be signed by the judge and filed with the clerk of the court. If the judge in any case refuse 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, the application may 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. [Amendment, approved March 30, 1874; Amendments 1873-4, 448; took effect July 1, 1874.] Settlement of bill of exceptions: Sec. 1171, note.

1175. What bill of exceptions is to contain.

SEC. 1175. A bill 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.

See ante, sec. 1171, in note.

1176. Written charges not to be excepted to.

SEC. 1176. When written charges have been presented, given, or refused, or when the charges have been taken down by the reporter, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges or the report, with the indorsements showing the action of the court, form part of the record, and any error in the decision of the court thereon may be taken advantage of on appeal, in like manner as if presented in a bill of exceptions.

Action of court upon instructions, how shown. The action of the court in giving or refusing instructions must be shown on appeal either by the indorsement of the judge thereon, or by incorporating them in a bill of exceptions, together with the ruling of the court made at the time they are given or refused: People v. Thompson, 28 Cal. 218; People v. Martin, 32 Id. 91; People v. Tetherow, 40 Id. 286; People v. Hart, 44 Id. 598. In the latter case, it was held, under section 438 of the criminal practice act, Hittell's Gen. Laws, par. 2025, of which section 1176 of this code is a

1179. New trial defined.

re-enactment, that the written charges referred to therein meant only such as either party might present and ask to be given, and not to such charges as the court gave of its own motion, and that such charges were not a part of the judgment roll, and would not be considered upon an appeal from the judgment; but 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.

Reporters' notes, how embodied in bill of exceptions: Sec. 1171, note.

CHAPTER VI.

NEW TRIALS.

SEC. 1179. A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given.

Motion, how made.-A motion for new trial must be made viva voce. If desired, the grounds of the motion and the rulings of the court thereon may be embodied in a bill of exceptions, and can be reviewed by the supreme court in no other way: People v. Ah Sảm, 41 Cal. 645.

Motion, by whom heard.—It seems that the motion for new trial need not necessarily be heard by the judge who presided at the

trial: People v. Hobson, 17 Cal. 424; People v. Hodgdon, 55 Id. 72.

Bill of exceptions.-In making a motion for new trial, it is not necessary to have a bill of exceptions or statement prepared beforehand, or for the hearing of the motion. The bill of exceptions may be settled after the motion is heard and settled: People v. Fisher, 51 Cal. 319; People v. Keyser, 53 Id. 183; People v. Hewell, 6 Pac. C. L. J. 448.