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CHAPTER III.

Arrest of judgment.

$ 547. A motion in arrest of judgment is an application, on the part of the defendant, that no judgment 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. It may be founded on any of the defects in the indictment, mentioned in section 355.

$ 548. The court may also, on its own view of any of these defects, arrest the judgment, without motion.

$ 549. The motion must be made before or at the time when the defendant is called for judgment. If made before, it must be on five days notice to the district attorney

$ 550. The effect of allowing a motion in arrest of judgment, is to place the defendant in the same situation in which he was before the indictment was found.

$ 551. If, from the evidence on the trial, there is reasonable ground to believe the defendant guilty, and a new indictment can be framed upon which he may be convicted, the court may order him to be re-committed to the officer of the proper county or admitted to bail anew, to answer the new indictment. If the evidence show him guilty of another offence, he shall be committed or held thereon ; and in neither case shall the verdict be a bar to another prosecution or indictment. But if no evidence appear sufficient to charge him with any offence, he shall, if in custo ly, be discharged or if admitted to bail, his bail shall be exonerated, or if money have been deposited instead of bail, it shall be refunded to the defendant; and the arrest of judgment shall operate as an acquittal of the charge upon which the indictment was founded.

TITLE IX.

OF THE JUDGMENT AND EXECUTION.

CHAPTER I. The judgment.

II. The execution.

CHAPTER I.

The judgment.

§ 552. After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment be not arrested or a new trial granted, the court shall appoint a time for pronouncing judgment.

$ 553. The time appointed shall be at least two days after the verdict, if the court intend to remain in session so long, or if not, as remote a time as can reasonably be allowed. But in no case shall the judgment be rendered, in less than six hours after the verdict.

§ 554. For the purpose of judgment, if the conviction be for a felony, the defendant must be personally present; if it be for a misdemeanor, judgment may be pronounced in his absence.

$ 555. When the defendant is convicted of a felony, if he be in custody, the court may direct the officer in whose custody he is, to bring him before it for judgment; and the officer shall do so accordingly.

$ 556. If the defendant have been discharged on bail. or have deposited money instead thereof, and do not appear for judgment, when his personal attendance is necessary, the court, in addition to the forfeiture of the undertaking of bail or of the money deposited, may direct the clerk to issue a bench warrant for his arrest.

$ 557. The clerk, on the applicatio of the district attorney, may accordingly, at any time after the order, whether the court be sitting or not, issue a bench warinto one or more counties.

$ 558. The bench warrant shall be substantially in the following form:

County of Albany, sor as the case may be.] “In the name of the people of the state of New-York

“To any sheriff, constable, marshal or police

man in this state. A. B. having been on (SEAL) the

day of

, 1849, duly convicted in the court of sessions of the county of Albany, (or as the case may be,) of the crime of, [designating it generally.)

"You are therefore commanded forth with to arrest the

above named A. B., and bring him before that court for judgment; or if the court have adjourned for the term, that you deliver him into the custody of the sheriff of the county of Albany, or as the case may be, or in the city and county of New-York “to the keeper of the city prison of the city of New-York.”] “City of Albany, the

day of

, 1849. “By order of the court.

“E. F., clerk."

$ 559. The bench warrant may be served in any county, in the same manner as a warrant of arrest ; except, that when served in another county, it need not be endorsed by a magistrate of that county.

§ 560. Whether the bench warrant be served in the county in which it was issued, or in another county, the officer shall arrest the defendant and bring him before the court, or commit him to the officer mentioned in the warrant, according to the command thereof.

§ 561. When the defendant appears for judgment, he shall be informed by the court, or by the clerk under its direction, of the nature of the indictment, and of his plea, and the verdict, if any, thereon, and shall be asked whether he have any legal cause to show, why judgment should not be pronounced against him.

$ 562. He may show for cause against the judgment,

1. That he is insane; and if, in the opinion of the court, there be reasonable ground for believing him to be insane, the question of his insanity shall be tried as provided by sections 740 to 743, both inclusive. If, upon the trial of that question, the jury find that he is of sound mind, judgment shall be pronounced; but if they find him insane, he shall be committed to the state lunatic asylum until he become sane; and when notice is given of that fact, as provided in section 747, he shall 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.

$ 563. If no sufficient cause be alleged, or appear to the court, why judgment should not be pronounced, it shall thereupon be rendered.

$ 564. After a plea or verdict of guilty, in any case where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the 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 [Fourth Rep.)

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