suggestions for further instructions; at which time the defendant's counsel is permitted to enter his exceptions to the charge.

§ 76. Jury in charge of the case. concluded its charge, it is usual to

When the court has

swear an officer to

take the jury to some convenient place, and there keep them together without food or drink, water excepted, unless by order of court, until they have agreed upon a verdict; not to allow others to converse with them, nor to speak to them himself except to ask them whether they have agreed upon a verdict; and when they have so agreed, to bring them into court. The old practice was very rigorous; but more humane treatment is now given to the jurors. They are generally permitted to have their meals; and by a commendable practice in some places they are permitted to have sleeping accommodations. If, after being out a reasonable time, it appears that they cannot agree, they may be discharged. If they agree they are brought into court with their verdict.

§ 77. Verdict. As a general rule, a verdict which simply finds the defendant guilty is sufficient. When there are several charges in the indictment, for which the law prescribes different punishments, the verdict should be more specific. Thus, if the indictment charges the accused with committing burglary, and also with receiving stolen property, a verdict finding him guilty should state of which crime he is found guilty.

If the offense charged in the indictment contains several grades, the jury should specify of which grade the defendant is found guilty. Thus, on a well drawn indict

ment for assault to commit murder, the verdict could be "guilty of assault with intent to commit murder," or of "assault with intent to do bodily injury," or of "common assault."

Where there are several distinct misdemeanors charged in separate counts of the indictment, the verdict should specify, by numbers, the particular counts on which the defendant is found guilty (11).

§ 78. Sealed verdict. For convenience jurors are sometimes permitted to seal their verdict and give it to the clerk to be read the next morning, or at the next opening of court; but the jurors should always be present when their verdict is read.

§ 79. Polling the jurors. When a verdict of guilty is eturned, the accused may require each juror to be asked: "Was this, and is this now your verdict?" If any juror answers in the negative, the verdict cannot be entered.

(11) Day v. People, 76 Ill. 380.

CHAPTER VI.

PROCEEDINGS SUBSEQUENT TO TRIAL.

SECTION 1. PROCEEDINGS IN TRIAL COURT.

§ 80. After verdict. When a verdict is entered, if the accused is on bail he may be committed, or left at large on his old bail, or he may be required to give new bail. He is usually given a reasonable time to enter a motion for a new trial or a motion in arrest of judgment.

§ 81. Motion for new trial. Motions for new trials are based on lack of evidence, errors in admitting or excluding testimony, prejudicial remarks of court or counsel, errors in selecting jurors, misconduct of jurors, newly discovered evidence, or any other matter affecting the rights of accused.

§ 82. Motion in arrest of judgment. By a motion in arrest of judgment the accused takes advantage of some insufficiency or irregularity appearing of record; such as, that the record shows that the grand jury was improperly selected or impanelled; or fails to show that the indictment was presented in open court; or that the indictment is insufficient in substance; or was not indorsed “A true bill." If the motion in arrest of judgment is sustained, the defendant is discharged, or he may be held for further action.

§ 83. Sentence. If the motion for a new trial and the motion in arrest of judgment are overruled, the court may immediately, or at a future time, enter the sentence. In felony cases the accused must be present, and he is usually asked whether he has anything further to say why the sentence should not be passed upon him. In misdemeanor cases, the sentence is often entered in the absence of the accused; but if the sentence or part of it is imprisonment, the court should require him to be present. Where two or more sentences are entered against the same person on separate indictments, or upon separate counts of the same indictment, the court should direct the order in which they are to be served; otherwise they will all run at the same time (1). In a capital sentence, the day on which it is to be executed should be stated.

At any time during the same term, the court may set aside or modify the sentence; but when the term of court has closed, the sentence cannot be changed by the court that entered it. However, it may be subject to a judicial reprieve.

§ 84. Judicial reprieves. At common law any judge who had power to enter a sentence for a felony, had power to grant a respite or reprieve. In the reign of Queen Elizabeth it was asked of the judges at Westminster, whether a sentence of death which had been respited by the judges of assizes for six weeks, could be further respited by the same judges; the assizes having in the meantime adjourned. It was answered by all the

(1) People v. Whitson, 74 Ill. 20.

judges, that a further respite could be granted, and that such was always the law of the realm (2).

In 1828 Judge Ogden Edwards of New York, because of newly discovered evidence, granted a reprieve to a man about to be hanged. This action of the judge very much annoyed Governor DeWitt Clinton, who wrote to the judge, informing him that the power to pardon or to reprieve was by the constitution vested in the executive and not in the judicial branch of the government. As Governor Clinton died within a few days after writing the letter, Judge Edwards directed his answer to the lieutenant-governor, in which he very ably defended his position, showing that the power to reprieve had always been a judicial function, which was not destroyed by the constitutional provision vesting the same power in the governor (3). The supreme court of West Virginia has unqualifiedly taken this stand (4), while the New York court of appeals attempts to draw a line between reprieves and suspension of sentences (5).

The term "suspension of sentence" probably had its origin in American cases where such action was unnecessary, but the presiding judges were not aware of their common law inherent right to reprieve. Were it not for the right vested in judges to grant reprieves, great injustice at times might be done; for, in the shadow of the gallows, uncontrovertible proof of innocence may appear.

(5) People v. Court of Sessions, 141 N. Y. 288.