CHAPTER III.

ARREST OF JUDGMENT.

SECTION 527. Motion in arrest of judgment,defined,and upon what defects founded. 528. Court may arrest judgment, without motion.

529. Motion, when and how made.

530. Effect of arresting the judgment.

531. Defendant when to be held or discharged.

§ 527. 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 342.

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

The last two sections are substantially conformable to the existing practices

§ 529. The motion must be made, before or at the time when the defendant is called for judgment. If made before, it must be on notice to the district attorney, or in his presence.

When the defendant is called for judgment, he may now move in arrest. It seems reasonable to provide that if the motion be made before that time, it should be on notice to the district attorney.

§ 530. 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.

Declaratory of the existing rule.

§ 531. 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 must be committed or held thereon; and in neither case, is the verdict a bar to another prosecution or indictment for the same offence. But if no evidence appear, sufficient to charge him with any offence, he must, if in custody, be discharged, or if admitted to bail, his bail is exonerated, or if money have been deposited instead of bail, it must be refunded to the defendant; and the arrest of judgment operates 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.

SECTION 532, 533. Time for pronouncing judgment, to be appointed by the court. 534. In felony, defendant must be present. In misdemanor, judgment may be pronounced in his absence.

535. When defendant is in custody, how brought before the court for judgment.

536. How brought before the court, when he is on bail.

537. Bench warrant to issue.

538. Form of bench warrant.

539, 540. Service of the bench warrant.

541. Arraignment of defendant for judgment.

542. What cause may be shown against the judgment.

543. If no sufficient cause shown, judgment to be pronounced.

544. Court may summarily inquire into circumstances in aggravation or

mitigation of punishment.

545. Testimony how given.

546. No other testimony or representations to be received.

547. Violation of the last section, how punished.

548. On conviction of two or more offences, judgment of imprisonment on one to commence at the expiration of the imprisonment another. 549. Duration of imprisonment, on a judgment to pay a fine.

550. The judgment roll.

§ 532. 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 must appoint a time for pronouncing judgment.

§ 533. The time appointed must 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 rea

sonably be allowed.

But in no case can the judg ment be rendered, in less than six hours after the verdict.

It has been the practice, with but few execptions, to pronounce judgment immediately upon conviction. It seems but reasonable, to allow some time either to move for a new trial or in arrest of judgment. In Liv. Crim. Code, 540, art. 416, three days is allowed for this purpose. Lest judgment should be postponed to another term, the provision contained in this section is introduced.

§ 534. 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.

By the existing practice, the defendant can in no case be sentenced to imprisonment unless he be present. It would seem that this is unnecessary, in cases of misdemeanor, where the imprisonment can in no case exceed a year. Especially is it unnecessary under the provision of the code, authorizing the execution of the judgment upon a certified copy of the sentence. See sec. 551.

§ 535. When the defendant is in custody, the court may direct the officer in whose custody he is, to bring him before it for judgment: and the officer must do so accordingly.

§ 536. 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 depcsited, may direct the clerk to issue a bench warrant for his arrest.

§ 537. The clerk, on the application of the district attorney, may accordingly, at any time after the order, whether the court be sitting or not, issue a bench warrant into one or more counties.

§ 538. The bench warrant must be substantially in the following form:

County of Albany, or as the case may be.]

"In the name of the people of the state of New-York"To any sheriff, constable, marshal or policeman in this state. A. B. having been on the 1850, duly convicted in the couri of sessions of the county of Albany. (or as the case may be,) of the crime of, [designating it generally.]

(SEAL.]

day of

"You are therefore commanded, forthwith to arrest the above named A. B., and bring him before that court for judgment; or if the court have adjourned for the term, you are to 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."]

of

"City of Albany, [or as the case may be] the

1850.

"By order of the court.

day

"E. F., clerk."

$539. The bench warrant may be served in any county, in the same manner as a warrant of arrest; except that [CRIM. CODE.]

17