party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.

Polling jury.-Either party may require that the jury be polled-6 McLean, 182; 11 Ind. 569; 8 Ired. 330; 52 Ga. 478; 11 Ohio, 472; 77 N. C. 498; 1 Wend. 91; 6 Wis. 205; so, of the court on its own motion-31 Ark. 196. If any juryman dissent, the verdict is a nullity, and the jury must again retire for deliberation-Breese, 109; 1 Bail. 3; 26 Ala. 107; 5 J. J. Mar. 676; but not if the dissent be withdrawn-6 Tex. Ct. App. 121; and see 6 McLean, 86; 11 Ind. 569; 23 Mich. 63.

1164. When the verdict given is such as the court may receive, the clerk must immediately record it in full upon the minutes, read it to the jury, and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case.

Recording verdict.-Unless it appears that defendant may have been prejudiced in respect to a substantial right, the failure to record the verdict, read it to the jury, and ask if it is their verdict, is not fatal to the judgment-6 Pac. C. L. J. 968. A verdict does not become final until recorded in the minutes-6 Pac. C. L. J. 65; and judgment cannot be pronounced on it-id. If the jury is discharged before the verdict is entered on the minutes, the prisoner should be discharged -6 Pac. C. L. J. 65.

Acquittal, discharge, and detention. Where the variance be tween the proof and indictment is of such a character that a conviction is impossible, the defendant has not been in jeopardy, and may be detained for further trial-17 Cal. 332; 28 id. 507; 9 id. 259; 29 id. 257; see 38 id. 476. See ante, Const. Prov. p. 17; and see JEOPARDY, ante, § 1016.

1165. If judgment of acquittal is given on a general verdict, and the defendant is not detained for any other legal cause, he must be discharged as soon as the judgment is given, except where the acquittal is because of a variance between the pleading and proof, which may be obviated by a new indictment or information, the court may order his detention, to the end that a new indictment or information may be preferred, in the same manner and with like effect as provided in section one thousand one hundred and seventeen. [In effect April 9th, 1880.]

1166. If a general verdict is rendered against the defendant, or a special verdict is given, he must be remanded, if in custody, or if on bail, he may be committed to the proper officer of the county to await the judgment of the court upon the verdict. When committed, his bail is exonerated, or if money is deposited instead of bail, it must be refunded to the defendant.

See BAIL, post, § 1268.

1167. If the jury render a verdict of acquittal on the ground of insanity, the court may order a jury to be summoned from the jury list of the county, to inquire whether the defendant continues to be insane. The court may cause the same witnesses to be summoned who testified on the trial, and other witnesses, and direct the district attorney to conduct the proceedings, and counsel may appear for the defendant. The court may direct the sheriff to take the defendant and retain him in custody until the question of continuing insanity is determined. If the jury find the defendant insane, he shall be committed by the sheriff to the State insane asylum. If the jury find the defendant sane, he shall be discharged. [Approved March 30th, in effect July 1st, 1874.]

§ 1172. Exceptions to decision of court by either party.

§ 1173. Exceptions to decision of the court by the defendant. Exceptions, how settled.

§ 1174.

§ 1175. What bill of exceptions is to contain.

§ 1176. Written charges need not be excepted to.

1170. On the trial of an indictment or information, exceptions may be taken by the defendant to a decision of the court

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

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

3. In admitting or rejecting testimony, or in deciding any question of law not a matter of discretion, or in charging or instructing the jury upon the law on the trial of the issue. [In effect April 9th, 1880.]

Exceptions. To entitle errors complained of to review; they must be set out in a settled bill of exceptions properly signed-34 Cal. 309. An exception is a formal protest against the ruling of the court upon a question of law, and a bill of exceptions is a written statement, settled and signed by the judge, of what that ruling was, the facts in view of which it was made, and the protest of counsel-38 Cal. 141. The office of a bill of exceptions is to show that proper proceedings have been taken to perfect an appeal-45 Cal. 45.

Subd. 1. Exceptions may be taken for disallowing a challenge, in contradistinction to allowing a challenge for implied bias, for which no exception can be taken-53 Cal. 603; 51 id. 496; 49 id. 169; id. 680; 45 id. 144; 7 id. 140. But the decision of the court on a challenge for actual bias is not subject to review-49 Cal. 560; 53 id. 603; 49 id. 166. Sustaining a challenge for implied bias cannot be excepted to or reviewed -49 Cal. 679; 45 id. 142. See ante, §§ 1055-1058.

Subd. 2. A bill of exceptions may be maintained for refusing triers, or upon any question arising upon a challenge in a case where triers may be demanded-1 Denio. 281; 3 Ired. 532; 21 Wend. 509; or upon instructing triers upon questions of law-1 Denio, 281. See ante, SS 1073, 1078, 1102, and notes.

Subd. 3. When a general objection is made to evidence, it must be understood to be taken to its competency-38 N. H. 324. Deliber

ately permitting evidence to be given without objection, and then moving to strike it out on grounds which might readily have been availed of in the first instance, is not to be tolerated-43 Cal. 446. Where improper questions are permitted to be answered, it must show the answers given, or that they prejudiced the defendant-25 Mich. 499. An exception cannot be taken to an answer which is responsive to a question put without objection-39 Me. 359; see 29 Mich. 173. The error of excluding evidence is cured by its subsequent admission-4 Parker, 662. On a refusal of the court to admit evidence, it should state what he expected or believed the witness would testify-1 Met. (Ky.) 6. When a question objected to is not answered, no injury is done-45 Cal. 28. To the forms of questions asked, and to the range allowed counsel in their arguments, exceptions will not lie-1 Parker Cr.R. 147; id. 424; id. 474. See ante, §§ 1093, subd. 6; 1102, 1127, and notes.

1171. When a party desires to have the exceptions taken at the trial settled in a bill of exceptions, the draft of a bill must be prepared by him and presented, upon notice of at least two days to the district attorney, to the judge for settlement, within ten days after judgment has been rendered against him, unless further time is granted by the judge, or by a justice of the Supreme Court, or within that period the draft must be delivered to the clerk of the court for the judge. When received by the clerk, he must deliver it to the judge, or transmit it to him at the earliest period practicable. When settled, the bill must be signed by the judge and filed with the clerk of the court. [Approved February 18th, 1881.]

Settlement of bill of exceptions.--This section is directory-14 Cal. 510. A statement and bill of exceptions on this subject mean the same thing-14 Cal. 511. The judge here mentioned is the judge who should determine the motion for a new trial-55 Cal. 72. The district judge may refuse to consider or settle a bill of exceptions presented by defendant unless the notice required by section 1171 has been given to the district attorney-53 Cal. 423. He may refuse to settle a proposed bill which consists of reporters' notes, written out, containing questions and answers, and remarks of counsel, judge, and jurors-49 Cal. 584; 53 id. 423; it was never intended that the reporter's notes should constitute a bill of exceptions-49 Cal. 584; so, he may refuse, if it fails to state the evidence relative to the point presented in the narrative form, or its substance, or what it tended to prove-49 Cal. 581; 53 id. 423; or if it contains only a skeleton statement-53 Cal. 423; 16 Wis. 333. When an exception represents the matter differently from the statement made up by the judge, it will be disregarded, and the statement taken to be true-Busb. (N. C.) 436. Without having made a motion for a new trial, defendant may rely on any ground in section 1170, and in such case he must have a bill of exceptions settled as provided in this section-53 Cal. 184. Where it is intended to apply for settlement of the bill, after the statutory period of two days, notice must be given to the district attorney, and sufficient excuse must be shown for the delay in presenting or filing it-53 Cal.423. The action of the court below, on motion to set aside the indictment, or on demurrer, can only be reviewed on an appeal from the judgment-39 Cal. 370. The stipulations of the attorney cannot be substituted for

58

the certificate of the judge to a bill of exceptions-37 Cal. 274; see 55

id. 72.

If the defendant should fail to prepare and tender a bill of exceptions within ten days, or such additional time as may be allowed, excuses therefor will be heard, and the bill may be signed-14 Cal. 510. A mandamus will issue, not to compel the signing of the bill fiied absolutely, but to sign the same after it is duly settled-14 Cal. 512. Where it is not shown that there are reasonable grounds for the appeal taken, and it appears that it is intended merely for delay, and no application was made for time to prepare the statement immediately after the refusal of the court to act, mandamus must be denied-18 Cal. 433. A bill of exceptions not signed by the district judge will be disregarded on appeal-44 Cal. 327. The court will not inquire into the reason which induced the judge to sign the bill after the statutory period, but will presume they were sufficient-14 Cal. 511. See post, 1176, note.

1172. Exceptions may be taken by either party to a 85-decision of the court or judge upon a matter of law

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

ment.

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

3. In making, or refusing to make, an order after judgment, affecting the substantial rights of the parties.

Subd. 1. Exceptions at the trial and exceptions to the rulings on a motion in arrest are incompatible-32 Me. 581. Where no exception is taken to the denial of a motion in arrest of judgment, and the record does not set out the evidence on which the motion was made, the appellate court will presume that the motion was properly overruled -40 Ala. 72. See post, §§ 1185-1188, and notes.

Subd. 2. The judge here mentioned is the judge who should determine the motion for a new trial-55 Cal. 72. A motion for a new trial may be heard without any bill of exceptions-53 Cal. 183. Defendant may move for a new trial on any or all of the grounds in section 1181, and if the motion is denied, he may present a draft of his bill of exceptions, and have the same settled as provided in section 1174-53 Cal. 183. When the motion for the new trial was granted on the ground that the evidence was insufficient to justify the verdict, the question must be presented by bill of exceptions duly settled and certified by the judge-42 Cal. 536. See post, $ 1179-1182, and notes, and see 55 Cal. 72.

Subd. 3. See post, § 1237, subd. 3 and note; and see 55 Cal. 72.

1173. Exceptions may be taken by the defendant to a decision of the court upon a matter of law

1. In refusing to grant a motion for a change of the place of trial.

2. In refusing to postpone the trial on motion of the defendant.

Subd. 1. If there be cause of objection to an order for a change of place of trial, it must be stated in the court below-13 Ark. £6; see 1 Morris, 486. See ante, § 1034.