proceed in the latter court in the same manner as if it had been there commenced.

Sec. 311. When a jury has been empanelled in either case, contemplated in the last two preceding sections, such jury may be discharged without prejudice to the prosecution.

Sec. 312. When the defendant has been convicted or acquitted upon an indictment for an offence, consisting of different degrees, the conviction or acquittal shall be a bar to another indictment for the offence charged in the former, or for any lower degree of that offence, or for an offence necessarily included therein.

Sec. 313. If a juror has personal knowledge of any fact material to the cause, he must declare it to the court, and not to his fellowjurors out of court; if a juror declare a fact material to the cause to his fellow-jurors, without the knowledge of the court and defendant, he may be punished as for a contempt.

Sec. 314. When the jurors are permitted to separate after being impanelled, and at each adjournment, they must be admonished by the court that it is their duty not to converse among themselves, nor suffer others to converse with them, on any subject connected with the trial, or to form or express an opinion thereon, until the cause is finally submitted to them.

Sec. 315. After hearing the charge, the jury may either decide in court or retire for deliberation. They must retire under charge of an officer, sworn to keep them together, in some private and convenient place, without food, except such as the court shall order, and not permit any person to speak or communicate with them, nor do so himself, unless by order of the court, or to ask them whether they have agreed upon their verdict, and return them into court when they have so agreed, or when ordered by the court. The officer shall not communicate to any person the state of their deliberations.

Sec. 316. A conviction cannot be had on the testimony of an accomplice, unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offence or the circumstances thereof.

Sec. 317. The court may direct the jury in any case to be discharged, when it appears that it has no jurisdiction of the offence, or that the facts charged in the indictment do not constitute an offence punishable by law.

Sec. 318. When a jury is discharged for want of jurisdiction in the court to hear and determine the case, and it appears that the offence was committed within the jurisdiction of another district in this territory, the court shall commit the defendant for a certain time, to await a warrant for his arrest from the proper county, and, in the meantime, the defendant may be admitted to bail under the usual legal restrictions provided in cases of commitment on preliminary examination.

Sec. 319. If no warrant is produced, on or before the day the defendant is recognized to appear, in such case he shall be discharged, and his bail, if he have any, be exonerated.

Sec. 320. In such case the clerk of the court shall forthwith transmit a certified copy of the indictment, and of all papers filed in the action, to the district attorney of the proper county at the expense of that county.

Sec. 321. Whenever, in the opinion of the court, it is proper that the jury shall view the place in which the offence is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of the sheriff, to the place, which may be shown to them by a person appointed by the court for that purpose.

Sec. 322. Up to the time that the case is submitted to the jury, on the consent of both the district attorney and the attorney for the defendant, the jury, in the discretion of the court, may be allowed to separate, but not afterwards.

Sec. 323. When a jury is required to be kept together, the sheriff shall provide them with board and lodging at the expense of the county.

Sec. 324. If, before the conclusion of a trial, a juror become sick so as to be unable to perform his duty, the court may order him to be discharged; in that case a new juror may be sworn and the trial begin anew.

Sec. 325. In charging the jury, the court shall state to them all such matters of law as it shall think necessary for their information in giving their verdict.

Sec. 326. Either party may present to the court any written charges upon matters of law and request (them) to be given. If the court think (them) to be correct and pertinent, (they) shall be given; if not, (they) shall be refused.

Sec. 327. On the trial of any indictment or prosecution for a criminal offence, exceptions to the decisions of the court may be made in the same cases and in the same manner as provided by law in civil cases; and bills of exceptions shall be settled, signed, and filed as allowed by law in civil actions.

Sec. 328. A room shall be provided by the sheriff of each county for the jury, upon their retirement for deliberation, with suitable furniture, lights, and fuel, unless the same shall have already been furnished by the county; such room, lights, and fuel, shall be charged to the county.

Sec. 329. After a jury has retired, if they so decree, they may be brought before the court for further instructions.

Sec. 330. After the case has been submitted to the jury, if they cannot agree, or one of the jury become so sick as to be unable to perform his duties as a juror, the jury may be discharged.

Sec. 331. In all cases where a jury are discharged or prevented from giving a verdict from any cause, except when the defendant is discharged from indictment during the progress of the trial, or after the cause is submitted to them, for want of jurisdiction in the court, or because the territory has failed to make out a case, or when the defendant has made good his plea, the case may be again tried at the same or another term of court.

Sec. 332. While the jury are absent considering the cause submitted to them, the court may adjourn from time to time, as to other business; but it shall nevertheless be deemed to be open for every purpose connected with the cause submitted to the jury, until a verdict be rendered or the jury discharged.

Sec. 333. When the jury agree upon a verdict, they must be brought into court and their names called by the clerk, and if all be present, their foreman shall deliver their verdict to the court, who may, with their consent, in their presence correct the same as to matters of form; the court shall deliver the verdict to the clerk, who shall file and record the same, and then read the same to the jury, and ask them if the verdict as recorded is their verdict; if all of the jury assent thereto, they shall be discharged.

Sec. 334. If either party desire it, the jury may be polled, and if it be found that the verdict presented by the jury is not the verdict of the whole jury, the court may send the jury back to their room to further consider the case, or discharge the same, in its discretion.

Sec. 335. Any juror who shall fail to declare his dissent to the verdict, when the same is read to him by the clerk, if he do so dissent, may be dealt with by the court for contempt.

Sec. 336. When the jury return a verdict of not guilty, the defendant must be discharged at the time; but if they return a verdict of guilty, the defendant may be committed to the custody of the proper officer, and at the same time required to appear on some day certain, to receive the judgment of the court.

Sec. 337. When a defendant is committed, his bail shall be exonerated, or any money deposited to secure his appearance refunded.

Sec. 338. On the trial of an indictment, exceptions may be taken by the defendant to any decision of the court upon matters of law affecting his substantial rights.

Sec. 339. The district attorney, or any counsel for the territory, may except to any decision of the court upon a question of law, in admitting or rejecting witnesses, or testimony, or in deciding any question of law, not a matter of discretion, or in giving or refusing any instructions to the jury, when the case is finally submitted to them.

Sec. 340. If, upon appeal to the supreme court in any criminal case, on the part of the territory, it is found that the district

court committed an error which should reverse the case, and a new trial be granted, it shall not be considered that the defendant was not put in jeopardy by the former trial.

Sec. 341. Upon the trial of any indictment for any offence, when by law there may be conviction of different degrees of such offence, the jury, if they convict the defendant, shall specify in their verdict of what degree of the offence they find the defendant guilty.

Sec. 342. When the indictment charges an offence against the property of another, by robbery, theft, fraud, embezzlement, or the like, the jury, on conviction, shall ascertain and declare in their verdict the value of the property taken, embezzled, or received, and the amount restored, if any, and the value thereof; but their failure to do so shall in nowise affect the validity of their verdict. Sec. 343. In all cases of a verdict of conviction for any offence, when by law there is any alternative or discretion in regard to the kind or extent of punishment to be inflicted, the jury may assess and declare the punishment in their verdict; and the court shall render a judgment according to such verdict, except as hereinafter provided.

Sec. 344. When a jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, or assess a punishment not authorized by law, and in all cases of judgment by confession, the court shall assess and declare the punishment, and render judgment accordingly.

Sec. 345. If the jury assess a punishment, whether of imprisonment or fine, below the limit prescribed by law, for the offence of which the defendant is convicted, the court shall pronounce sentence, and render judgment, according to the lowest limit prescribed by law, in such case.

⚫ Sec. 346. If the jury assess a punishment, whether of imprisonment or fine, greater than the highest limit declared by law, for the offence of which they convict the defendant, the court shall disregard the excess, and pronounce sentence, and render judgment, according to the highest limit prescribed by law in the particular case.

Sec. 347. The court shall have power in all cases of conviction, to reduce the extent or duration of the punishment assessed by a jury, if, in its opinion, the conviction is proper, but the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted.

31

CHAPTER XIII.

PROCEEDINGS AFTER TRIAL AND BEFORE JUDGMENT.

Sec. 348. Bill of exceptions to be settled and signed.
Sec. 349. What must contain.

Sec. 350. Filed with clerk.

Sec. 351. New trial-definition of.

Sec. 352. Granting new trial-effect of.

Sec. 353. New trial-when granted.

Sec. 354. When application made.

Sec. 355. Written notice filed.

Sec. 356. Motion to arrest judgment—what is-causes for.
Sec. 357. Court may arrest judgment.

Sec. 358. Arrest of judgment-effect of.

Sec. 359. As to defendant, when judgment arrested.

Section 348. A bill containing the exceptions must be settled and signed by the judge, and filed with the clerk of the court, within ten days after the trial of the cause, unless further time be granted for good cause by the judge, or one of the justices of the supreme

court.

Sec. 349. The bill of exceptions shall contain so much of the evidence only as is necessary to present the question of law upon which the exceptions were taken, and the judge shall, upon the settlement of the bill, whether agreed to by the parties or not, strike out evidence and other matters not material or pertinent to the questions raised.

Sec. 350. The bill of exceptions must be filed with the clerk of the court, as soon as signed by the judge.

Sec. 351. A new trial is a re-examination of the issue, in the same court.

Sec. 352. The granting of a new trial, places the parties in the same position as if no trial had been had. The former verdict. cannot be used, or referred to, either in the evidence or argument.

Sec. 353. The court may grant a new trial, for the following causes, or any of them: First. When the jury has received any evidence, papers, or documents not authorized by the court, or the court has admitted illegal testimony, or for newly-discovered evidence. Second. When the jury has been 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. Third. When the verdict has been decided by means, other than a fair expression of opinion on the part of all the jurors. Fourth. When the court has misdirected the