Though the juror has in fact consented to the verdict; though even it is in writing, and he has signed it, yet he has the right to dissent at any time before it is finally recorded.1

The defendant in this State has a right to poll the jury.2

When the polling of the jury is demanded, the clerk will begin with the first name on the panel: "A. B., how do you find the prisoner at the bar, guilty or not guilty ?" (when the foreman has answered, he then calls the next juror, as follows :) "C. D., is that your verdict ?" (the clerk then proceeds in the same manner through the whole panel, and when all have answered, he says:) "Then gentlemen of the jury hearken to your verdict as the court has recorded it. You say you find the prisoner at the bar guilty of the felony (or felony and murder, or misdemeanor, or offence, as the case may be) whereof he stands indicted, and so say you all?”‹

§ 127. MOTION IN ARREST OF JUDGMENT.

After the jury have rendered their verdict, and before the sentence of the court has been pronounced, the defendant may move in arrest of judgment, for all defects or matters of objection which are not cured by verdict.3 A motion in arrest of judgment, is an application on the part of the defendant that no judgment be rendered on a verdict against him. By arrest of judgment, is meant the refusal of the court to enter a judgment, for some cause apparent upon the record. The judgment of the court being a conclusion of law, from the facts upon the record, must be collected from the whole record. If, therefore, the record itself shows no ground for judgment, it cannot be rendered, even though verdict of guilty be found.4

The causes on which this motion are grounded are numerous, but are confined to objections which arise upon the face of the record itself, and which make the proceedings apparently erroneous, and, therefore, no defect in evidence, or improper conduct on the trial, can be urged in this stage of the proceedings.5

1 2 Hale's P. C., 299; Burk v. Com., 5 J. J. Mar., 675; Rex v. Parkin, 1 Moody, 45.

Peo. v. Perkins, 1 Wend., 91.

1 Arch. Cr. Pr., § 178.

Idem, note; State v. Allen, R. M. Chart. R., 518.

1 Ld. Ray., 231; 1 Selk., 77; 4 Burr., 2287; 1 Sid., 35; 7 Blackf., 272; Com. Dig. Indict., N; 8 Sme. & Mar., 573; 9 Id., 465; 1 Hemp., 1.

Among the grounds for arrest of judgment may be mentioned the following: Any want of sufficient certainty in the indictment respecting the time, place or offence, which is material to support the charge, as well as the circumstance of no offence being charged.1 So, also, where no issue has been joined between the people and the defendant; and where it appeared that the case had been tried by thirteen jurors ;3 also, where the defendant had been tried in a different district from that directed by law. So, also, where the verdict itself is insensible.5

6

There are, however, several points in which an indictment is cured by verdict, and in which the errors that might have been taken advantage of at a previous stage, are not sufficient to arrest judgment. Thus, while duplicity is fatal on motion to quash, or demurrer, the better opinion is that it will not be ground for arrest,' and the same position is undoubtedly good when there has been a misjoinder of counts, but the defendant has gone to trial without a motion to quash, or an application for election.R So, also, the practice is said to be not to arrest judgment on the ground of irregularities in the summoning, or the procedure of the grand jury. Nor is it ground to arrest the judgment, that the jury were under the charge of an unsworn officer.10 Judg ment will not be arrested for a variance between the indictment and the proofs, but only for defects apparent on the record."

So it is too late, after verdict, to object to argumentative pleading in an indictment.12

The statute provides that certain omissions in an indictment shall not cause the same to be deemed invalid, nor shall they

1 4 Blac. Com. 375; 3 Burr., 190; 1 East., 146.

2 State v. Fort, 1 Car. Law Rep., 510.

* 2 Hayw. 113. Vide 2 Ash., 91; 21 Pick., 509; 3 Metc., 330.

• 1 Brevard, 47.

• Com. v. Cole, 21 Pick., 509.

• Whar. Cr. L., 3d ed., 975.

* Idem; Com. v. Tuck, 20 Pick., 356; State v. Jackson, 3 Hill's S. C. R., 1;

Whar. Cr. L., 3d ed., 192- 194, 242–244.

• Whar. Cr. L., 3d ed., 975, 154; Com. v. Gillispie, 7 Serg. & R., 476.

• Whar. Cr. L., 3d ed., 975, 226–229; 2 Ashmead, 70.

10 9 Sme. & Mar. R., 465.

"Peo. v. Onondaga Sess., 1 Wend., 296.

1 Peo. v. Warner, 4 Barb., 314; 12 Wend., 425; 16 Id., 53; Charles v. Peo.,

1 N. Y. (1 Com.), 180; see Peo. v. Powers, 6 N. Y., 50.

1

affect the trial, judgment or other proceedings, and by the same statute the trial, judgment or other proceedings are not to be affected by reason of defects or imperfections in matters of form which do not tend to the prejudice of the defendant.2

In motions for the arrest of judgment, on account of an objection to the form of the indictment, one good count, even if others are defective, will support a general verdict of guilty.3

The defendant may move at any time in arrest of judgment before the sentence is actually pronounced upon him, and if the sentence is once pronounced, though before the actual entry of the judgment, the court are not bound to attend at all to a motion of this nature, even though a formal error should be discovered sufficient to reverse the proceedings;5 but the court may, if they think fit, arrest the judgment, notwithstanding that it has been given. In such case the motion, however, cannot be entertained after judgment against the defendant on demurrer." In motions for arrest of judgment the causes for the arrest should be specified.8

The court may also arrest the judgment upon its own motion without any application of the defendant, and even where the defendant waives the motion; if the court, upon a review of the whole case, are satisfied that he has not been guilty of any offence in law they will of themselves arrest the judgment.9

If the objections taken in arrest of judgment be valid the whole proceedings will be set aside, but the party may be indicted again.10

1. 2 R. S., 728, § 54; see motion to quash, ante page 267, and indictment, post page.

8 Id., 6 N. Y., 50.

Peo. v. Stein, 1 Park. 202; Id., 246; 3 Gray, 463; 5 McLean, 23; 1 John., 320.

5 T. R., 445; 2 Burr, 801; 2 Stra., 845.

3 Burr, 1901, 1902, 1903; Com. Dig. Indict., N.

• 2 Lord Raym., 1221.

" Id..

State v. Wing, 32 Maine, 581.

1 East., 146; 11 Harg. St. Tr., 299.

10 4 Blac. Com., 375.

Section

SECTION IV.

OF THE SENTENCE AND PUNISHMENT.

CXXVIII.-PRONOUNCING THE SENTENCE.

CXXIX.-OF THE SENTENCE OR JUDGMENT.

CXXX.-SENTENCE TO EXPIRE BETWEEN MARCH AND NOVEMBER.
CXXXI-SENTENCE, WHEN THERE ARE SEVERAL CONVICTIONS AT THE SAME TIME..
CXXXII-COURTS TO EXAMINE CONVICTS AS TO THEIR HAVING LEARNED A TRADE.
CXXXIII-PERSONS UNDER SIXTEEN YEARS OF AGE MAY BE SENTENCED TO THE
HOUSE OF REFUGE.

CXXXIV. PERSONS OVER SIXTEEN AND UNDER TWENTY-ONE YEARS OF AGE, MAY
BE SENTENCED TO THE PENITENTIARY INSTEAD OF STATE PRISON.
CXXXV.-WHAT STATE PRISONS CONVICTS SHALL BE SENTENCED TO BE CONFINED IN.
CXXXVI.-OF STAYING THE SENTENCE.

CXXXVII.-OF THE DISQUALIFICATIONS CONSEQUENT UPON SENTENCE.

CXXXVIII.-COPIES OF SENTENCE, WHEN TO BE FURNISHED SHERIFF, AND HIS DUTY

THEREON.

CXXXIX-ENTERING JUDGMENT IN THE MINUTES.

CXL.-RECORDS OF JUDGMENT.

CXLI.-OF THE PUNISHMENT.

CXLII.-OF THE PUNISHMENT FOR FELONIES.

CXLIII.-PUNISHMENT FOR MISDEMEANORS.

CXLIV.-SURETY OF THE PEACE MAY BE REQUIRED OF CONVICT IN ADDITION TO

CXLV.-PUNISHMENT OF ACCESSORIES BEFORE THE ACT, AND PRINCIPALS IN THE

SECOND DEGREE

CXLVI.-PUNISHMENT OF ACCESSORIES AFTER THE FACT.
CXLVII.-PUNISHMENT FOR ATTEMPTS TO COMMIT OFFENCES.

CXLVIII.-PUNISHMENT OF PERSONS COMMITTING SECOND OFFENCE, AFTER PRE

VIOUS CONVICTION OF A FELONY.

CXLIX.-PUNISHMENT OF PERSONS COMMITTING SECOND OFFENCE AFTER PREVIOUS
CONVICTION OF PETIT LARCENY, OR FOR CERTAIN ATTEMPTS TO COM-

MIT OFFENCES.

CL-PUNISHMENT OF PERSONS CONVICTED IN THIS STATE, AFTER PREVIOUS
CONVICTION IN OTHER STATES OR FOREIGN TERRITORIES.

CLI-PERSONS CONFINED FOR FINES, WHEN DISCHARGED IF UNABLE TO PAY

FINE.

CLII.-ENFORCEMENT OF FINES AGAINST CORPORATIONS.

§ 128. PRONOUNCING THE SENTENCE.

THE verdict of the jury having been duly rendered and docketed by the clerk, and no motion in arrest of judgment having been granted, the court proceeds to sentence the prisoner. Before proceeding to the sentence, the crier makes the following proclamation: "Here ye, here ye! All manner of persons are commanded to keep silence while judgment is given against the prisoner at the bar, upon pain of imprisonment."

The judge usually precedes the judgment by an address to the prisoner, especially if his crime be capital, in which he states that he has been convicted on satisfactory evidence, and informs him when there is little hope that mercy will be extended to him. Sometimes, also, he takes an opportunity of impressing the circumstances of the prisoner's guilt on the minds of the spectators,

and traces out the remote but important causes which have led to his unhappy condition. Even in the case of an acquittal, he may often usefully warn the defendant against the circumstances which might again place him in an equivocal situation, especially if there seems reasonable ground to believe him guilty. It is obvious, however, that the above formalities are not indispensable, and if they are omitted. the judgment is good.1

The judgment or sentence of the court is usually given soon after the conviction, at least during the same term of the court at which the prisoner is convicted, unless the rendering of the judgment is stayed by the filing of a bill of exceptions for the purpose of taking the opinion of the Supreme Court upon the case. When corporal punishment is to be inflicted on the defendant, it is absolutely necessary, unless some statute has otherwise directed, that he should be personally before the court at the time of pronouncing the sentence; but the personal presence of the defendant, is not necessary where a fine only is imposed. But where the defendant is found guilty, and the court pronounce judgment that he pay a fine and stand committed until it be paid, and the imprisonment is no part of the punishment, but only a mode of enforcing payment of the fine, it is not necessary that the defendant should be present.4

It is made the duty of the court in which any person shall be convicted of an offence, punishable in a State prison, before passing the sentence, to ascertain by the examination of such convict on oath, and in addition to such oath, by such other evidence as can be obtained, whether such convict had learned and practiced any mechanical trade, and the clerk of the court shall enter the facts, as ascertained and decided by the court, on the minutes thereof, and shall deliver a certificate stating the facts as ascertained to the sheriff of the county, who shall cause the same to be delivered to the warden of the proper prison, at the time that such convict is delivered to the said warden pursuant to his sentence.5

1

1 1 Bish. Cr. Pro.; 1 Gisb. Duties of Man, 405. Vide sentence in Peo. v. Thayer. 1 Park., 599.

1 Arch. Cr. Pr., § 180, note; 1 Chit. Cr. L., 699; 2 R. S., 736.

Peo. v. Clark, 1 Park., 360; 12 Wend., 348; 1 Ld. Raym., 267; 7 Cow.,

524; 2 Ala., 212; 5 Engl., Ark, 318.

Son v. Peo., 12 Wend., 344; 1 Va. Cas., 172.

2 R. S., 5th ed., vol. 3, p. 1086, § 85.