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 information or indictment.
§ 8271. Causes for granting new trial. When a verdict has been rendered against the defendant, the court in which the trial was had, may upon his application, grant a new trial in the following cases, only:
1. When the trial has been had in his absence, if the information or indictment is for a felony.
2. When the jury has received out of court any evidence other than that resulting from a view of the premises, or any communication, document or paper referring to the case.
3. When the jury have separated without leave of the court, after retiring to deliberate upon their verdict, or have 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 other means 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 or has done or allowed any act in the action prejudicial to the substantial rights of the defendant.
6. When the verdict is contrary to law or clearly against the evidence.
7. When new evidence is discovered material to the defense, and which the defendant could not, with reasonable diligence, have discovered and produced at the trial.
When the application 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 persons by whom such evidence is expected to be given; and if time is required by the defendant to procure 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. But the court may, when the affiants are residents of this state, compel their personal attendance before it; and they may be examined and cross-examined under oath, touching the matters set forth in their affidavits.
§ 8272. Application for new trial. Notice. The application for a new trial must be made upon not less than one nor more than five days' written notice, and if based upon any of the grounds mentioned in subdivisions 2, 3, 4 and 7, of the last section, such written notice must be served and filed within thirty days after the discovery of the facts upon which the party relies in support of his application; and in all other cases the notice must be served and filed within ten days after the rendition of the verdict, or within such further or other time as the court may allow or fix.
§ 8273. Same. Affidavits. Upon minutes of the court. The application for a new trial, if made for any of the causes mentioned in subdivisions 1, 2, 3, 4 and 7, of section 8271 must be based upon affidavits which must be filed before the notice is served; in all other cases the application may be made upon the minutes of the court or upon the record of the action and the notice must designate generally the grounds upon which the motion will be made as near as may be
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