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§ 1413. General Verdict, Form of, and What it Imports.

A general verdict upon a plea of not guilty, is either "guilty" or “not guilty;" which imports a conviction or acquittal of the crime charged in the indictment; and upon a plea of a former conviction or acquittal of the same crime, the verdict is either "for the state," or "for the defendant." [L. 1864; D. Cd. § 159 ; D. & L. § 179; H. C. § 1378.]

See note to preceding section.

§ 1414. Special Verdict Defined - Requisites Of.

A special verdict is one by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact, as established by the evidence, and not the evidence to prove them; and these conclusions of fact must be so presented as that nothing remains to the court but to draw conclusions of law upon them. [L. 1864; D. Cd. § 160; D. & L. § 180; H. C. § 1379.]

See note to § 1412.

§ 1415. Special Verdict, how Given.

The special verdict must be reduced to writing by the jury, or in their presence, under the direction of the court, and agreed to by them, before they are discharged. It need not be in any particular form, but is sufficient if it present intelligibly the facts found by the jury. [L. 1864; D. Cd. § 161; D. & L. § 181; H. C. § 1380.]

1416. Judgment on Special Verdict.

The court must give judgment upon the special verdict as follows:1. If the plea be not guilty, and the facts prove the defendant guilty of the crime charged in the indictment, or of any other crime of which he could be convicted under that indictment, as provided in sections 1417 and 1418, judgment must be given accordingly; but if otherwise, judgment of acquittal must be given. [L. 1864; D. Cd. § 162; D. & L. § 182; H. C. § 1381.]

§ 1417. Jury May Convict of any Degree, or of an Attempt.

Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime or any such inferior degree thereof. [L. 1864; D. Cd. § 163; D. & L. § 183; H. C. § 1382.]

Where the indictment charges the crime of murder, a verdict of manslaughter is not inconsistent with the indictment: State v. Wintzingerode, 9 Or. 153; Fitzhugh v. State, 2 Or. 217; State v. Grant, 7 Or. 414. Defendant may be convicted of petty larceny under an indictment for larceny from a store, where the value of the stolen property is alleged: State v. Hanlon, 32 Or. 102, 48 Pac. 353; State v. Taylor, 3 Or. 10; State v. Savage, 36 Or. 191, 60 Pac. 610.

Burglary is not a crime consisting of different degrees, like the various degrees of criminal homicide; nor is an assault with intent to commit rape one of the degrees of such crime: State v. Ryan, 15 Or. 572, 16 Pac. 417.

The court must not instruct the jury what degree to find; that is for the jury, unless the degree of the crime is admitted: State v. Ah Lee, 7 Or. 237; State v. Whitney, 7 Or. 386.

$ 1418. Jury May Convict of any Crime Necessarily Included in that Charged. In all cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit such crime. [L. 1864; D. Cd. § 164; D. & L. §184; H. C. § 1383.]

The crime of larceny in a building includes necessarily the lesser crime of simple larceny, and under an indictment for larceny in a building, the defendant may be convicted of simple larceny: State v. Savage, 36 Or. 194, 60 Pac. 610; State v. Hanlon, 32 Or. 95, 48 Pac. 353.

The grand jury may indict a person for any degree that they may consider the defendant guilty of, but at the trial he may be found guilty of any crime the commission of which is necessarily included in that with which he is charged, or of an attempt to commit such crime: State v. Ellsworth, 30 Or. 159, 47 Pac. 199.

The effect of this section is to regard each degree necessarily embraced within the specifications of the charge as a separate indictment, upon all of which the ac

cused is tried at the same time, and a verdict of conviction upon an inferior degree operates as an acquittal of all the superior degrees necessarily included therein: State v. Steeves, 29 Or. 109, 43 Pac. 947.

It is the duty of the trial court to instruct the jury in a criminal prosecution, where the offense charged necessarily includes a lesser offense, that they have the right to find the accused guilty of the latter, where there is doubt as to his guilt of the former; and where it appears that the instruction was not given, it is error which an accused may take advantage of upon appeal, without having interposed an exception at the trial: State v. Cody, 18 Or. 519, 23 Pac. 891.

$ 1419. Jury May Give Verdict as to Defendants, Concerning whom they Agree. On an indictment against several, if the jury can not agree upon a verdict as to all, they may give a verdict as to those in regard to whom they do agree, on which a judgment must be given accordingly; and the case as to the rest of the defendants may be tried by another jury. [L. 1864; D. Cd. § 165; D. & L. §185; H. C. § 1384.]

§ 1420. When and how Court May Direct a Reconsideration of Verdict.

When there is a verdict found, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict; but if after such reconsideration they find the same verdict, it must be received. [L. 1864; D. Cd. § 166 ; D. & L. § 186; H. C. § 1385.]

§ 1421. Verdict can not be Received until in Legal Form.

If the jury find a verdict which is neither a general nor a special verdict, as defined in sections 1413 and 1414, the court may, with proper instructions as to the law, direct them to reconsider it; and the verdict can not be received until it be given in some form from which it can be clearly understood what is the intent of the jury, whether to render a general verdict or to find the facts specially, and to leave the judgment to the court. [L. 1864; D. Cd. § 167; D. & L. § 187; H. C. § 1386.]

§ 1422. Defendant, when to be Discharged or Detained after Acquittal.

If judgment of acquittal be given on a general or special verdict, and the defendant be not detained for any other legal cause, he must be discharged as soon as the judgment is given, except that, when the acquittal is for a variance between the proof and the indictment, which may be obviated. by a new indictment, the court may order his detention, to the end that a

new indictment may be preferred, in the same manner and with like effect, as provided in section 1352 and 1353. [L. 1864; D. Cd. § 168; D. & L. § 188; H. C. § 1387.]

§ 1423. Defendant, Custody of, when Verdict Against Him.

If a general verdict be given against the defendant, or a special verdict be given, he must be remanded, if in custody; if he has given bail, he may be committed to await the judgment of the court upon the verdict. When committed, his bail is exonerated; or if money be deposited in lieu thereof, it must be refunded to the defendant. [L. 1864; D. Cd. § 169; D. & L. § 189; H. C. § 1388.]

§ 1424. Proceeding, when Defendant Acquitted on Account of Insanity.

If the defense be the insanity of the defendant, the jury must be instructed, if they find him not guilty on that ground, to state that fact in their verdict, and the court must thereupon, if it deems his being at large dangerous to the public peace or safety, order him to be committed to any lunatic asylum authorized by the state to receive and keep such persons, until he become sane, or be otherwise discharged therefrom by authority of law. [L. 1864; D. Cd. § 170; D. & L. § 190; H. C. § 1389.]

§ 1425. Exceptions and New Trial, how Regulated.

Chapters VII and VIII of title II of the code of civil procedure shall apply to and regulate exceptions and new trials in criminal actions, except that a new trial shall not be granted on the application of the state. [L. 1864; D. Cd. §171; D. & L. §191; H. C. § 1390.]

CHAPTER XI.

OF ARREST OF JUDGMENT.

§ 1426. Motion in Arrest of Judgment— Upon what Causes Founded and When Made.

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 the plea of a former conviction or acquittal. It may be founded on either or both of the causes specified in subdivisions 1 and 4 of section 1357, and not otherwise. The motion must be made within the time allowed to file a motion for a new trial, and both such motions may be made together, and heard and decided at once or separately, as the court may direct. [L. 1864; D. Cd. § 172; D. & L. § 192; H. C. § 1391.]

Motion in arrest of judgment is available only when the grand jury which found the indictment had no legal authority to inquire into the crime charged, because the

same was not triable within the county, or when the facts stated in the indictment do not constitute a crime: State v. Childers, 32 Or. 128, 49 Pac. 801.

§ 1427. Effect of Arresting Judgment.

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. [L. 1864; D. Cd. § 173; D. & L. § 193; H. C. § 1392.]

§ 1428. Defendant, when to be Held Notwithstanding Arrest of Judgment.

If, from the evidence given 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 must order the defendant to be recommitted to custody or admitted to bail, to answer the new indictment, if one be found; and if the evidence show him to be guilty of another crime than that charged in the indictment, he must in like manner be committed or held thereon, and in neither case is the verdict a bar to another action for the same crime. [L. 1864; D. Cd. § 174; D. & L. § 194; H. C. § 1393.]

$1429. Defendant, when Must be Discharged on Arrest of Judgment.

If no evidence appear sufficient to charge the defendant with any crime, he must, if in custody, be discharged, or if he has given bail or deposited money in lieu thereof, his bail is exonerated or his money must be refunded to him; and in such case, the arrest of judgment operates as an acquittal of the charge upon which the indictment was founded. [L. 1864; D. Cd. $175; D. & L. § 195; H. C. § 1394.]

CHAPTER XII.

OF JUDGMENTS, AND THE ENFORCEMENT THEREOF.

$1430. Time of Pronouncing Judgment.

After a plea or verdict of guilty, or after a verdict against the defendant on a plea of former conviction or acquittal, if the judgment be not arrested or a new trial granted, the court must appoint a time for pronouncing judgment. [L. 1864; D. Cd. § 176; D. & L. § 196; H. C. § 1395.]

§ 1431. What Time May be Appointed.

The time appointed for pronouncing judgment must be at least two days after the verdict, if the couri intend to remain in session so long, or if not, as remote a time as can reasonably be allowed; but in no case can the judgment be given, except by the consent of the defendant, in less than six hours after the verdict. [L. 1864; D. Cd. § 177; D. & L. § 197; H. C. $1396.]

§ 1432. Personal Presence of Defendant, when Required.

For the purpose of giving judgment, if the conviction be for a felony, the defendant must be personally present; but if it be for a misdemeanor,

judgment may be given in his absence. [L. 1864; D. Cd. § 178; D. & L. § 198; H. C. § 1397.]

§ 1433. Defendant in Custody, must be Before the Court.

When the defendant is in custody, the court must direct the officer in whose custody he is to bring him before it for judgment, and the officer must do so accordingly. [L. 1864; D. Cd. § 179; D. & L. § 199; H. C. § 1398.]

$ 1434. Proceeding when Defendant has Given Bail and does not Appear.

If the defendant has given bail, or has deposited money in lieu thereof, and does not appear for judgment when his personal attendance is necesary, the court, in addition to the forfeiture of the undertaking of bail or the money deposited, may direct the clerk to issue a bench warrant for his arrest. [L. 1864; D. Cd. § 180; D. & L. § 200; H. C. § 1399.]

$1435. Bench Warrant to Issue.

At any time after the making of the order for the bench warrant, the clerk, on the application of the district attorney, must issue such warrant, as by the order directed, whether the court be sitting or not. [L. 1864; D. Cd. § 181; D. & L. § 201; H. C. § 1400.]

$ 1436. Bench Warrant, Form Of.

The bench warrant must be substantially in the following form:

CIRCUIT COURT FOR THE COUNTY OF

STATE OF OREGON.

IN THE NAME OF THE STATE OF OREGON.

day of

To any sheriff or his deputy of this state, greeting: A. B. having been, on the 19, duly convicted in the court aforesaid of the crime of (designating it generally), this is to command you forthwith to arrest the above-named defendant and bring him before such court for judgment, or if the court have adjourned for the term, that you deliver him into the custody of the jailor of the county aforesaid. By order of the court.

Witness my hand and seal of said circuit court, affixed at

[blocks in formation]

day of

19-.

C. D., County Clerk.

[L. 1864; D. Cd. §182; D. & L. § 202; H. C. § 1401.]

§ 1437. Bench Warrant May Issue to One or More Counties, how Served.

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Such bench warrant may issue to one or more counties of the state, and be served in the same manner as provided in section 1343, in case of a bench warrant upon an indictment. [L. 1864; D. Cd. § 183; D. & L. § 203; H. C. § 1402.]

§ 1438. Court May Inquire into Circumstances in Aggravation or Mitigation of Punishment.

After a plea or verdict of guilty, or a verdict against a defendant on

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