CHAPTER LXXX. PROCEEDINGS AFTER VERDICT. Section Section 990. Motion in arrest of judg- 993. The sentence. ment. 991. Motion for new trial, and to set aside the verdict. 992. Sentencing the prisoner. 994. Cumulative sentences. § 990. Motion in arrest of judgment.-After verdict of conviction a motion in arrest of judgment will lie for any fatal error which appears upon the record.1 The most common ground for such a motion is insufficiency of the indictment to sustain the judgment.2 In some states this motion will lie only for grounds which are specified in the statutes. Since misconduct on the part of the jury does not appear on the face of the record, motion in arrest will not lie. fo: such ground,3 nor will it lie for any defects which are cured by the verdict, such as a formal defect in the indictment. The court, on its own motion, may arrest the judgment.5 1 Commonwealth V. Donahue, 126 Mass. 51; Hall v. Commonwealth, 80 Va. 555. 2 Commonwealth v. Hinds, 101 Mass. 209; State v. Gove, 34 N. H. 510. 3 Commonwealth V. Donahue, 126 Mass. 51; Hall v. Commonwealth, 80 Va. 555; State v. Mar tin, 38 W. Va. 568, 18 S. E. 748; Bellasis v. Hester, 1 Ld. Raym. 280. 4 People v. Smith, 94 Mich. 644, 54 N. W. 487. 5 United States V. Plummer, Fed. Cas. No. 16056, 3 Cliff. (U. S.) 28. 8 § 991. Motion for new trial, and to set aside the verdict.— The defendant in all criminal cases is entitled to make a motion for new trial in the court where the cause was tried.® The general rule is that where an error does not injure the party or influence the result a new trial will not be granted.7 It is also the general rule that if error is shown there is a presumption of injury. The granting of a new trial is to a certain extent within the discretion of the court. A motion for new trial should be made before judgment, or during the judgment term. 10 Among the grounds for motion for new trial is insufficiency of the evidence to support the verdict. This, more than some other grounds, is an appeal to the judicial discretion,11 and a new trial is not usually granted if the evidence is conflicting or there is any evidence to sustain the verdict.12 A verdict contrary to law will be set aside as a matter of course.13 Newly discovered evidence is a common ground for a new trial.14 A motion upon this ground must be supported by sufficient affidavits showing that the evidence was discovered since the trial,15 that the 6 Turner v. State, 175 Ind. 1, 93 N. E. 225; Gray v. Commonwealth, 101 Pa. St. 380, 47 Am. Rep. 733; 1 Bish. New Crim. L. (8th ed.), 88 992, 1009, 1026. 7 Ballew v. State, 36 Tex. 98; Cremeans v. Commonwealth, 104 Va. 860, 52 S. E. 362, 2 L. R. A. (N. S.) 721. 8 State v. Coleman, 186 Mo. 151, 84 S. W. 978, 69 L. R. A. 381; Tyson v. State, 14 Tex. App. 338. 9 Smith v. State, 165 Ala. 50, 51 So. 610; Rex v. Edmonds, 4 B. & Ald. 471. 10 Palatka, etc., R. Co. v. State, 23 Fla. 546, 3 So. 158, 11 Am. St. 395; Keefer v. State, 174 Ind. 588, 92 N. E. 656; Burke v. State, 72 Ind. 392. 11 People v. Chun Heong, 86 Cal. 329, 24 Pac. 1021; Williams v. State, 85 Ga. 535, 11 S. E. 859. 12 United States v. Ducournau, 54 Fed. 138; People v. Chun Heong, 86 Cal. 329, 24 Pac. 1021; Williams v. State, 85 Ga. 535, 11 S. E. 859. 13 State v. Ingold, 4 Jones L. (N. Car.) 216, 67 Am. Dec. 283; Sutton v. State, 41 Tex. 513. 14 Andersen v. State, 43 Conn. 514, 21 Am. Rep. 669; Smith v. State, 60 Tex. Cr. 81, 131 S. W. 313. 15 Holeman v. State, 13 Ark. 105; Stalcup v. State, 129 Ind. 519, 28 N. E. 1116. failure to discover it earlier was not from lack of diligence, 16 that it can probably be obtained at the new trial,1 and that it is material and such as will probably change the result.18 Ordinarily a new trial will not be granted for evidence that is merely cumulative,19 or impeaches a witness,20 but it is necessary that the evidence should fall clearly within the will and be cumulative 20a or impeaching evidence.21 Surprise at the testimony of a witness may also be a ground for a new trial.23 A new trial also may be granted for misconduct of the jury,24 or for prejudicial errors in the court's charge,25 or occasionally for the erroneous admission or exclusion of evidence;26 and it has been granted because of the misconduct or gross ignorance of the defendant's counsel.27 Motion for new trial does not lie for defects in pleading.28 § 992. Sentencing the prisoner. It is the court's duty to render judgment and pronounce sentence. After plea or verdict of guilty sentence should be given in open court29 on a judicial day,30 in the presence of the accused,31 unless merely a fine is imposed. If he is convicted of a capital crime the practice is to ask the prisoner whether he has any 16 Reagan v. State, 28 Tex. App. 227, 12 S. W. 601, 19 Am. St. 833; State v. Sargood, 80 Vt. 412, 68. Atl. 51, 130 Am. St. 992. 17 Friar v. State, 3 How. (Miss.) 422. 18 Young v. State, 56 Ga. 403; Rainey v. State, 53 Ind. 278. 19 Andersen v. State, 43 Conn. 514, 21 Am. Rep. 669; State v. Stumbo, 26 Mo. 306. 20 Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569; Hauck v. State, 1 Tex. App. 357. 20a Fletcher v. People, 117 Ill. 184, 7 N. E. 80. 21 State v. Townsend, 7 Wash. 462, 35 Pac. 367. 23 Thomas v. State, 52 Ga. 509; 24 Dooley v. State, 28 Ind. 239. 27 State v. Jones, 12 Mo. App. 28 White v. State, 93 Ga. 47, 19 S. E. 49. 29 See also, Reed v. State, 147 30 Blood v. Bates, 31 Vt. 147. ! thing to say why sentence should not be pronounced against him.32 It is held in some states, however, that it is not essential to ask this question33 in other than capital felonies, and it has been held that it is not necessary in capital cases.34 It is not necessary to render judgment or pronounce sentence immediately after conviction.35 § 993. The sentence.-An illegal sentence does not entitle the prisoner to be discharged or even to be granted a new trial.36 The severity of the sentence is in the sound discretion of the court, within the limits prescribed by law. It is only in very exceptional cases that the appellate court will disturb it. It has been held that a sentence of imprisonment for ninetynine years will not be disturbed where the law allows an imprisonment for life or for any term of years.37 The Constitution of the United States and the state constitutions prohibit cruel and unusual punishments; this prevents such punishments as burning, branding, mutilating, the pillory or the ducking stool, but the ordinary modes of punishment, such as hanging, imprisonment and fines, are not prohibited, 88 § 994. Cumulative sentences.-Where the accused is convicted on two or more counts of the same indictment, and the different counts are descriptive of the same offense, he can be sentenced on only one count.3 But where the counts are not descriptive of the same offense, he may be sentenced 32 Ball v. United States, 140 U. S. 118, 35 L. ed. 377; Dougherty v. Commonwealth, 69 Pa. 286. 33 Bressler v. People, 117 Ill. 422, 8 N. E. 63. 34 Gannon v. People, 127 Ill. 507, 21 N. E. 525, 11 Am. St. 147. 351 Chitty Crim. L. 699. 39 36 In re Bonner, 151 U. S. 242. 37 Hickan v. People, 137 Ill. 75, 27 N. E. 88. 38 Black Const. Law, 510; Cooley Const. Lim. (7th ed.), 471. 39 Claassen v. United States, 142 U. S. 140, 35 L. ed. 966; 2 Bish. New Crim. Proc., § 1327. on each count.40 Also, where two sentences to imprisonment are imposed upon the same person at the same time, they should be made cumulative.41 It has been held that where this is not done they shall be so regarded.42 There are, however, some decisions to the contrary.43 Sentences are cumulative where one begins upon the expiration of the other. 44 § 995. Execution of the sentence.-If the sentence is imprisonment, it begins at once. At common law, if an imprisonment is to commence on the expiration of another, it must be so stated in the sentence, or the terms of the two punishments will run simultaneously. If the sentence is death, the time is not usually set in the sentence, but is afterwards fixed by the court or the officer in charge of the execution,45 or in some states by the governor.46 If a prisoner escapes and is retaken, the time during which he was out of prison is not counted in the term of his sentence. The execution of a capital sentence upon a pregnant woman will be delayed until after the birth of her child.48 40 United States v. Peeke, 153 Fed. 166, 9 L. R. A. (N. S.) 1043; Ex parte Peeke, 144 Fed. 1016; Commonwealth v. Birdsall, 69 Pa. 482, 8 Am. Rep. 283. 41 Martin v. People, 76 Ill. 499; Ex parte Roberts, 9 Nev. 44, 16 Am. Rep. 1. 42 Mullinx v. People, 76 Ill. 211; Booth v. Commonwealth, 5 Metc. (Mass.) 535; 3 South. Law. Rev. (N. S.) 50. 43 People v. Liscomb (Tweed's Case), 60 N. Y. 559, 19 Am. Rep. 211. 44 State v. Smith, 5 Day. (Conn.) 175, 5 Am. Dec. 132; Martin v. People, 76 Ill. 499. |