SEC. 140. A new trial is a re-examination of the issue in the same court. 2 R. S. 408.

Effect of granting.

SEC. 141. The granting of a new trial places the parties in the same position as if no trial had been had; the former verdict can not be used or referred to, either in the evidence or argument. Ibid.

Cause for.

SEC. 142. The court may grant a new trial for the following causes, or any of them:

First. When the jury has received any evidence, paper, or document not authorized by the court, or the court has admitted illegal testimony, or for newly discovered evidence.

Second. When the jury have 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 jury in a material matter of law.

Fifth. When the verdict is contrary to law and evidence; but not more than two new trials shall be granted for this cause alone. 2 R. S. 409.

New trial.

When application made.

SEC. 143. The application for a new trial must be made before judgment. Ibid.

Form of motion-Cause for new trial.-Motion for a new trial in a criminal action assigning as cause, that "the jury has received evidence that was illegal, admitted by court." Held, that this was too indefinite. 53 Ind. 343.

Separate trial.-The refusal of the court below to grant a separate trial, when required, to a defendant indicted jointly with others, is not one of the statutory causes for a new trial; and, hence, the exception to such error may be saved by a bill of exceptions, and the refusal assigned for error in the supreme court.

39 Ind. 473.

Indictment charging distinct offenses.-Indictment charging that, at, etc., on, etc., A. B. "did, in a rude, insolent, and angry manner, unlawfully touch, strike, and wound" C. D., "a woman, and did, then and there, her, the said" C. D., "a woman, unlawfully, forcibly, and against her will, feloniously ravish and carnally know." Under an order requiring the prosecutor to elect, he elected to try him for the rape. Verdict, guilty of assault and battery, and new trial granted to defendant. Held, that defendant took the new trial as to the whole case, and it was error to sustain his objection to being tried thereon for a rape, and to put him on trial for assault and battery. 52 Ind. 188. See 1 Blackf. 37.

Newly discovered evidence.-On a conviction for an illegal sale of intoxicating liquor to one B., a motion for a new trial, on the ground of newly discovered evidence, in this, than one C. deceitfully and fraudulently brought about the alleged violation of law by purchasing the liquor, etc., is bad. 49 Ind. 507. See 9 Ind. 552. Same-Affidavit.-The affidavit of a party moving for a new trial on the ground of newly-discovered evidence must show that he has discovered evidence relating to the material facts of the case, of which he was ignorant at the time of the trial. 48 Ind. 383.

Diligence. A new trial will not be granted to let in a defense which was known before verdict, and of which the defendant might have availed himself under the general issue. 5 Ind. 1. See 57 Id. 26, 31.

Impeachment of witnesses.—As a general rule, new trials are not

New trial.

granted for the impeachment of witnesses or the admission of cumulative testimony. 2 Ind. 435; 57 Id. 31.

Capital case. If there be a verdict of guilty in a capital case, and the court have strong doubts whether the testimony supports the verdict, a motion for a new trial should be sustained. 1 Blackf. 395.

Duty of jurors.-It is the duty of jurors to consider carefully every part of the evidence, and, if necessary, reconsider it, and to hear and consider the views and arguments of their fellow-jurors, but at last each one of them must act upon his own judgment, and not upon that of another. This seems to be the rule contemplated by the statute, which makes it a good ground for a new trial, "when the verdict has been decided by means other than a fair expression of opinion, on the part of all the jurors." 42 Ind. 438.

Reversal of judgment.-The reversal of a judgment in a criminal cause, which results in a new trial, has the same effect as the granting of a new trial, on the application of the defendant, by the court below. 48 Ind. 548.

Effect of new trial.-Under sections 140 and 141 of the criminal code, the granting of a new trial in a criminal cause places the parties in the same position as if no trial had ever been had. Ibid.

Omission in verdict.-The question as to an omission in a verdict to fix the disqualification of holding an office of trust and profit can not be raised by a motion for a new trial. 42 Ind. 335.

Where decided-Effect of new trial.-The legal effect of granting the appellant in this cause a new trial, must be decided by the court below before it can properly be passed upon by the supreme

court. 42 Ind. 420.

Justice of the peace.-A justice of the peace has no power to grant a new trial or hearing of a criminal cause, after the prisoner has been once recognized, or the cause finally disposed of. 13 Ind. 73. As to new trial in bastardy, see 13 Ind. 357.

Misconduct of jury.-A new trial will not be granted in a criminal case, because the jury, without the permission of the court, took to their room papers which were given in evidence, if, so far as appears, the papers were taken inadvertently, without improper intervention by any person, and it is not shown that the jury made any use of them. 13 Ind. 434.

When to be made.-The application for a new trial, in criminal cases, by the R. S. 1852, must always be made before judgment. 7 Ind. 63.

New trial.

Where the indictment is bad (on motion in arrest), a motion for a new trial is correctly overruled. 7 Ind. 659.

Surprise. An indictment was found against A., on the 21st of November, 1854, for the murder of B., alleged to have been com-mitted on the 11th of October, 1854; and he was immediately put on trial, and found guilty of murder in the second degree. The homicide was committed when A. and B. were both drunk, and the evidence consisted chiefly of A.'s confessions, and the testimony of one C. to a threat made by A. about eighteen month's before, etc. The case did not seem to be one of great aggravation. Motion for a new trial on the affidavit of A. that he was surprised by C.'s evidence, and that it was false, which he could prove, if a new trial were granted, by persons named; that he had been in confinement over since the death of B., and had had no opportunity to prepare, and no means wherewith to employ counsel; that the defense was made by counsel assigned to him when the case was called for trial, who knew nothing of the circumstances, except as they were developed in the evidence, etc. Held, that, under all the circumstances, a new trial ought to have been granted. 6 Ind. 407. See 58 Ind. 197.

Alibi. After the conviction of a prisoner for arson, in settingfire to a building in Indianapolis, he moved for a new trial, to enable him to prove an alibi by one A., who had not been examined as a witness. The affidavit stated that the prisoner had slept with A., on the night the building was burned, in Indianapolis, etc. It admitted that the prisoner remembered the fact distinctly before the trial, but alleged that he had forgotten A.'s name, and had, therefore, made no effort to obtain his testimony. Held, that the court correctly overruled the motion. 6 Ind. 490.

Cumulative evidence.-A new trial will not be granted for newly discovered evidence which is merely cumulative. 6 Ind. 474; 16 Id. 97; 57 Id. 26, 31. See 2 Ind. 235; 11 Id. 234; 24 Id. 46; 54 Id. 79.

A new trial will not be granted because it is discovered that a witness who refused to testify to avoid criminating himself, now promises to testify on a new trial. 6 Blackf. 439.

Venire de novo.-Where a verdict is defective, the objection should be taken by a motion for a venire de novo. 26 Ind. 101. How made. The motion should be in writing, and state the reasons therefor. Bicknell's Crim. Pr. 241.

New trial.

Record. The record should show that the motion was in writing.. 16 Ind. 139; 15 Id. 224.

Affidavit-When necessary.-If the motion is for misconduct of the jury, or newly discovered evidence, or accident, or surprise, the motion must be sustained by affidavit showing the truth of the 21 Ind. 174, 219; Bicknell's Crim. Pr. 242.

causes.

Affidavit of witness.--When the cause is for newly discovered evidence, the defendant, in addition to his own, must also file the affidavit of the proposed witness. Bicknell's Crim. Pr. 242. See 9 Ind. 264.

Form of motion for new trial.

[Title, etc., as before.]

The defendant in the above-entitled cause moves the court to grant him a new trial in this cause for the following reasons and causes, to-wit:

1. Because the verdict of the jury is contrary to law.

2. Because the verdict is contrary to the evidence.

3. Misconduct of the jury in this, to-wit [here state the particular acts of misconduct].

Entry-Motion sustained.

[Title, etc., as before.]

Comes now the defendant and files his written motion and reasons for a new trial in this cause; and the prosecuting attorney comes also, and the court having heard the arguments of counsel, and being sufficiently advised, now sustains said motion, and grants said defendant a new trial, and this cause is continued, and the defendant required to enter into a recognizance in the sum of dollars.

Entry-Motion overruled--Exceptions. [Title, etc., as before.]

Comes now the defendant, in his own proper person, and by his attorney, and files his written motion and reasons and causes for a new trial in this cause; and the prosecuting attorney comes also, and the court having heard the argument of counsel, and being sufficiently advised, now here overrules said motion, and refuses to grant said new trial, to which ruling of the court the defendant. now here excepts.