Page:Revised Codes of the State of North Dakota 1895.pdf/1475

Before Judgment. 3. In charging or instructing the jury upon the law, upon the trial of the issue, except as otherwise provided in section 8179 of this code.

§ 8261. Clerk to enter orders. Certified copies. It shall be the duty of the clerk of the district court in which any criminal action or proceeding is pending or tried, to enter carefully and correctly in the minutes of such court, each ruling or decision of the court, made in open court, upon any matter by section 8259 and subdivisions 1 and 2 of section 8260 of this article declared to be deemed excepted to, and a certified copy of any or all such entries shall be and become a part of the record of said action.

§ 8262. Matters defendant may except to. Upon a trial of a criminal action or proceeding, exceptions may be taken by the defendant to a decision of the court:

1. In disallowing a challenge to a panel of the jury, or to an individual juror for implied bias.

2. In admitting or rejecting witnesses or testimony, on the trial of a challenge of a juror for actual bias.

3. In admitting or rejecting witnesses or evidence or in deciding any matter of law, not purely discretionary, on the trial of the issue.

§ 8263. Code construed. Nothing in this code contained is to be construed so as to deprive either party of the right of excepting to any action or decision of the court in a criminal action or proceeding, which affects any other material or substantial right of either party, whether before or after the trial, or on such trial.

§ 8264. Exceptions. Settled at trial. In all cases when the court is proceeding without a stenographer, the exceptions must be settled and certified, at the trial, unless the court otherwise directs. If the exceptions are settled at the trial, the point of the exception must be particularly stated in writing and delivered to the court, and must immediately be corrected or added to, until it is made conformable to the truth. The exceptions so settled and certified shall constitute a statement of the case.

§ 8266. Same. Not settled at trial. If the exceptions are not settled at the trial and in all cases when the testimony is taken down by an official stenographer, a statement of the case containing the exceptions must be prepared and served within thirty days thereafter, on the state's attorney or other person appointed to prosecute, who may within five days thereafter, serve on the defendant or his attorney, amendments thereto. The defendant may then, within five days, serve the state's attorney, or other person appointed to prosecute with a notice to appear before the judge who presided at the trial at a specified place and time, not less than five nor more than ten days thereafter, to have the statement of the case settled. At the place and time appointed, or as soon thereafter as the same can be done, the judge must settle the statement of the case, and certify the same to be correct, and thereupon the same must be filed with the clerk of the district court of the county in which the action was tried. The judge who presided at the trial may settle, and certify a statement of the case after as well as before he ceases to be such judge.

§ 8266. When supreme court may settle statement. If the judge who presided at the trial in any case refuses to allow an exception in accordance with the facts, or to settle or certify a statement of the case or has died or removed from the state, the party desiring the statement settled may apply by petition to the supreme

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