CHAPTER 35.

THE VERDICT.

4888. Return of jury. Failure of part to appear. Retrial. When the jury shall have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving their verdict. In that case the action may be again tried at the same or another term. § 5072.

Cal. Pen. C. 1147.

In criminal cases the verdict shall be unanimous, Con. art. 1, sec. 10.

[C. L.

4889. When defendant to be present at verdict. If charged with a felony, the defendant must before the verdict is received, appear in person. If, with a misdemeanor, the verdict may be rendered in his absence. [C. L. § 5073.

Cal. Pen. C. 1148.

Like provisions as to presence on arraignment, trial, and judgment, ?? 4757, 4811, 4907.

4890. Jury to declare the verdict. When the jury shall appear, they must be asked by the court or clerk whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same. [C. L. § 5074.

Cal. Pen. C. 1149.

Verdict against defendant deemed excepted to by him, 24945.

4891. Forms of verdicts. A verdict upon a plea of not guilty shall be either "guilty" or "not guilty," which imports a conviction or acquittal of the offense charged in the information or indictment. Upon a plea of a former conviction or acquittal of the same offense, it shall be either "for the state" or "for the defendant." When the defendant is acquitted on the ground that he was insane at the time of the commission of the act charged, the verdict must be, "not guilty by reason of insanity." When the defendant is acquitted on the ground of variance between the indictment or information and the proof, the verdict must be, "not guilty by reason of variance between indictment or information and proof." [C. L. § 5075*.

Cal. Pen. C. ? 1151.

4892. Degree of crime to be found by jury. Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.

Cal. Pen. C. 1157.

On reasonable doubt as to degree defendant must be convicted of lowest, ? 4849. On plea of guilty court to determine degree, ? 4906.

Verdict for murder finding defendant "guilty as charged in indictment"; held, improper, in that the verdict must declare whether the defendant is guilty of murder in the first or in the second degree. People v. Shafer, 1 U. 260.

A similar verdict in a larceny case held correct

[C. L. § 5076.

on the ground that the statute defining degrees does not apply to larceny case. People v. Gough, 2 U. 70.

Under section 5076, compiled laws of Utah, 1888, it is sufficient to allege facts showing a murder without indicating any terms and degree of the crime, leaving that to be determined by the jury or by the judge in case of conviction. Davis v. People, 151 U. S. 262. Same case, 8 U. 412: 32 P. 670.

4893. Verdict for any crime included in the charge. The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense. [C. L. § 5077.

Cal. Pen. C. 1159.

When a minor offense is included in a greater, the defendant may be acquitted of the latter and convicted of the former, unless the allegation is in a form not charging the lesser offense. People v. Chalmers, 5 U. 201; 14 P. 131.

A defendant indicted for assault with intent to murder may be found guilty of assault with a

deadly weapon with intent to do bodily harm. State v. McDonald, 14 U. 173; 46 P. 872.

Where the indictment charged assault with intent to commit murder, it is not error for the court to include in the instruction that he may be found guilty of a lesser offense in the absence of the defendant, having asked for such instruction. People v. Robinson, 6 U. 101; 21 P. 403.

4894. Joint defendants. Verdict against one or more. Retrial. On an information or 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 must be entered accordingly, and the case as to the others may be tried by another jury. [C. L. § 5078.

Cal. Pen. C. 1160.

4895. Reconsideration of verdict, when directed.

When there shall be a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there shall be a verdict of acquittal, the court shall not require the jury to reconsider it. If the jury render an informal verdict the court may direct them to reconsider it, and it shall not be recorded until it is rendered in some form from which it can be clearly understood what the intent of the jury is. [C. L. § 5079.

Cal. Pen. C. 1161*.

4896. Informal verdict. No conviction unless verdict express. 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. [C. L. § 5080.

Cal. Pen. C. 1162*.

4897. Polling of jury. When a verdict shall be 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 answers in the negative, the jury must be sent out for further deliberation. [C. L. $5081.

Cal. Pen. C. 1163.

4898. Verdict read to jury and recorded. Disagreement. When the verdict given shall be such as the court may receive, the clerk must immediately read it to the jury, inquire of them whether it is their verdict, and record it in full upon the minutes. If any juror disagrees, the fact must be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict shall be complete, and the jury must be discharged from the case. [C. L. § 5082*.

Cal. Pen. C. 1164.

4899. Judgment of acquittal. Discharge. If judgment of acquittal is given on a verdict, and the defendant is not detained for any other legal cause, he must be discharged as soon as the judgment is given. [C. L. § 5083.

Cal. Pen. C. 1165*.

4900. Judgment of conviction. Commitment. If a verdict is rendered against the defendant, he must be remanded, if in custody, or if on bail, he may be committed to the proper officer to await the judgment of the court upon the verdict. When committed, his bail shall be exonerated, or if money is deposited instead of bail, it must be refunded to the defendant. [C. L. § 5084.

Cal. Pen. C. 1166*.

CHAPTER 36.

ARREST OF JUDGMENT.

4901. Arrest of judgment defined. Grounds for. A motion in arrest of judgment is an application on the part of the defendant that no judg ment be rendered on a plea or verdict of guilty, or on a verdict against the defendant on a plea of a former conviction or acquittal or once in jeopardy. It may be founded on any of the defects in the information or indictment mentioned in section forty-seven hundred and seventy-nine unless the objection shall have been waived by a failure to demur, and must be made before or at the time the defendant is called for judgment. [C. L. § 5096*.

Cal. Pen. C. 1185#.

nounced, 4914. Objections not waived by failure Showing cause why judgment should not be pro- to demur, 4787. 4902. Id. By court of its own motion. The court may also, on its own view of any of these defects, arrest the judgment without motion. $5097.

Cal. Pen. C. 1186.

4903.

Id.

[C. L.

Effect. The effect of allowing a motion in arrest of judgment shall be to place the defendant in the same situation in which he shall have been before the information was filed or indictment found. [C. L. § 5098*.

Cal. Pen. C. 1187.

Order granting or refusing motion in arrest of judgment deemed excepted to, ? 4944.

4904. Id. Further prosecution. Discharge operates as acquittal. If, from the evidence on the trial, there is reason to believe the defendant guilty, and a new information or indictment can be framed upon which he may be convicted, the court may order him to be recommitted to the officer of the proper county, or admitted to bail anew, to answer the new information or indictment. If the evidence shows him guilty of another offense, he must be committed or held thereon, and in neither case shall the verdict be a bar to another prosecution. But if no evidence appears sufficient to charge him with any offense, he must, if in custody, be discharged; or if admitted to bail, his bail shall be exonerated; or if money shall have been deposited instead of bail, it must be refunded to the defendant; and the arrest of judgment shall operate as an acquittal of the charge upon which the information or indictment shall have been founded. § 5099*.

Cal. Pen. C. 1188.

[C. L.

order to hold defendant for higher offense not

4905. Court to appoint time for pronouncing judgment. After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, or once in jeopardy, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment, which must be at least two days after the verdict, if the court intends to remain in session so long; or if not, as remote a time as can reasonably be allowed. [C. L. § 5100*.

Cal. Pen. C. ? 1191*.

Judgment rendered within six hours after verdict is merely irregular, not void. In re Barton, 6 U. 264; 21 P. 998.

There is nothing in the Utah statutes which

requires the court itself, in the exercise of an inde pendent judgment on the facts, to find that defendant is guilty before imposing the sentence. Davis v. People, 151 U. S. 262. Same case, 8 U. 412; 37 P.

670.

4906. Upon plea of guilty, court to determine degree. Upon a plea of guilty of a crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree. [C. L. § 5101.

Cal. Pen. C. 1192.

On trial jury to find degree, ? 4892.

4907. Judgment in defendant's presence, if felony. For the purpose of judgment, if the conviction is for a felony, the defendant must be personally present; if for a misdemeanor, the judgment may be pronounced in his absence. [C. L. § 5102.

Cal. Pen. C. 1193.

Like provisions as to presence on arraignment, trial, and verdict, ?? 4757, 4811, 4889.

4908. Bench warrant for absent defendant. Bail forfeited. If the defendant shall have been discharged on bail or shall have deposited money instead thereof, and does not appear for judgment when his personal appearance shall be necessary, the court, in addition to the forfeiture of the undertaking of bail, or of money deposited, may direct the clerk to issue a bench warrant for his arrest. [C. L. § 5103.

Cal. Pen. C. 1195.

4909. Id. On application of county attorney. The clerk, on the application of the county attorney, may, at any time after the order, whether the court is sitting or not, issue a bench warrant into one or more counties. [C. L. § 5104.

Cal. Pen. C. 1196.

4910.

Form of bench warrant. The bench warrant must be substantially in the following form:

STATE OF UTAH,

COUNTY OF

The state of Utah, to any sheriff, constable, marshal, or policeman in this state: A B having been, on the

day of

district court of the county of

A. D., 18—, duly convicted in the of the crime of (designating it generally), you are therefore commanded forthwith to arrest the above named A B and bring him before that court for judgment; or if the court has adjourned for the term, that you deliver him into the custody of the sheriff of the county of Given under my hand with the seal of said county affixed, this

day of

A. D., 18—.

[SEAL.] By order of the court.

E F, Clerk.

4911. Bench warrant served as warrant of arrest. The bench warrant may be served in any county in the same manner as a warrant of arrest. [C. L. § 5106.

Cal. Pen. C. 1198*.

4912. Id. Arrest and disposition of defendant. Whether the bench warrant shall be served in the county in which it shall have been issued or in another county, the officer must arrest the defendant and bring him before the court or commit him to the officer mentioned in the warrant, according to the command thereof. [C. L. § 5107.

Cal. Pen. C. 1199.

4913. Appearance for judgment. Defendant asked to show cause. When the defendant shall appear for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him. [C. L. § 5108.

Cal. Pen. C. 1200.

4914. May set up insanity, or cause for arrest of judgment or for new trial. He may show for cause against the judgment:

1. That he is insane; and if, in the opinion of the court, there is reasonable ground for believing him to be insane, the question of insanity must be tried, as provided in chapter fifty of this code. If, upon the trial of that question, the jury find that he is sane, judgment must be pronounced; but if they find him insane, he must be committed to a lunatic asylum until he becomes sane; and when notice shall have been given of that fact, as provided in section five thousand and fifty-nine, he must be brought before the court for judgment.

2. That he has good cause to offer, either in arrest of judgment or for a new trial; in which case the court may, in its discretion, order the judgment to be deferred, and proceed to decide upon the motion in arrest of judgment or for a new trial. [C. L. § 5109.

Cal. Pen. C. 1201.

Arrest of judgment, ?? 4901-4904. New trials, 2 4950–4954. 4915. Pronouncing judgment. If no sufficient cause is alleged or appears to the court why judgment should not be pronounced, it must thereupon be rendered. [C. L. § 5110.

Cal. Pen. C. 1202.

A court has power to suspend sentence after a defendant has been convicted, for stated periods

from time to time for good reasons, but should proceed to sentence within a reasonable time. People v. Blackburn, 6 U. 347; 23 P. 759.

4916. Id. Facts may be shown in mitigation or aggravation. Notice. After a plea or verdict of guilty, when a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct. [C. L. § 5111.

Cal. Pen. C. 1203.

trial school after conviction, except for murder, 2140.

Boy or girl under eighteen may be sent to indus4917. Id. How presented. Limitation. The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness shall be so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or representation of any kind, verbal or written, shall be offered to or received by the court or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section. [C. L. § 5112.

Cal. Pen. C. 1204.

Penalty determined and imposed by the court,

22 4058, 4059. Penalty when maximum imprisonment not fixed by law, 4500.

4918. Conviction of two or more offenses. Terms begin when. If the defendant has been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses.

N. Dak. (1895) 28294.

Where there are several charges in different counts of an indictment against the same person for the same act or transaction, but one punishment can be imposed; but where the acts or transactions are different, constitute distinct offenses, and may properly be joined, separate punishments may be imposed on each count. U. S. v. Groesbeck, 4 U. 487; 11 P. 542.

Where bigamy and adultery were alleged in two separate counts in one indictment, it is not error

for judgment to be pronounced on both counts of the indictment in connection with both parts of the verdict. U. S. v. West, 7 U. 437; 27 P. 84.

A judgment sentencing a prisoner for a specific term of years under each of several indictments, the sentence in each case after the first to commence after the expiration of the sentence in the case preceding, authorizes his detention for the aggregate period of all the sentences. Ex parte Wilson, 11 U. 114; 39 P. 498.

4919. One dollar a day on imprisonment to satisfy fine. A judg ment that the defendant pay a fine may also direct that he be imprisoned until the fine is satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every one dollar of the fine. [C. L. § 5113.

Cal. Pen. C. 1205. Cal. Sup. '93, 1205*, p. 1071. At hard labor whether so designated or not, ? 4930.

This section applies to cases of conviction for criminal contempt. Ex parte Whitmore, 9 U. 441; 35 P. 524.