Page:1887 Compiled Laws of Dakota Territory.pdf/1216

§§ 7446-7451

§ 7446. The bill of exceptions must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken, and the judge must, upon the settlement of the bill, whether agreed to by the parties or not, strike out all other matters contained therein.

§ 7447. The bill of exceptions must be filed with the clerk of the court at the time of, or before taking the writ of error.

§ 7448. Exceptions may be taken by either party to a decision of the court or judge upon a matter of law:

1. In granting or refusing a motion in arrest of judgment.

2. In granting or refusing a motion for a new trial.

§ 7449. A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the indictment.

§ 7450. The court in which a trial has been had upon an issue of fact, has power to grant a new trial, when a verdict has been rendered against the defendant by which his substantial rights have been prejudiced, upon his application in the following cases only:

1. When the trial has been had in his absence, if the indictment is for felony.

2. When the jury has received any evidence out of court other than that resulting from a view of the premises.

3. When the jury have separated without leave of the court, after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented.

4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors.

5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial.

6. When the verdict is contrary to law or evidence.

7. When new evidence is discovered material to the defendant, and which he could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to produce such affidavits, the court may postpone the hearing of the motion for such length of time as, under all the circumstances of the case, may seem reasonable.

§ 7451. The application for a new trial must be made before judgment, but the court or judge thereof may upon good cause shown, allow such application to be made at any time within