This is a motion by the respondent for a new-trial on the ground that one of the jurors who rendered the verdict “was grossly prejudiced against the respondent and after he had *332received notice that he was drawn as a juror and before the-trial he had prejudged the case, and had formed and expressed an absolute, unqualified and unconditional opinion that said respondent was guilt}7.”
The case is before us on exceptions and the whole evidence is reported with the provision that if “the ruling of the justice presiding is erroneous, the law court is to make such disposition of the motion as the law and the evidence require.”
I. The first ruling was that the motion was made too late.
The verdict was rendered at the October term, 3877, and exceptions allowed. February 7,1879, an order was received from the law court to enter “Exceptions overruled — judgment on the verdict.” This was all the law court could do. By our statute it has no authority to pass sentence, and of course cannot render final judgment. This can be done only in the court in which the trial is had. The effect of the order was that all matters pending to prevent final judgment had been disposed of, and that alone remained to be done by the proper tribunal. As that can be done only in term time, the case must stand upon the docket until the next term for that purpose. Such was the condition of the case when this motion was made ; a conviction but no final judgment, for which it was awaiting.
While the case is thus pending it is not only competent but eminently proper that the respondent should be heard as to the limit of the sentence to be imposed, or whether it shall be postponed to a future time that the defendant may have an opportunity to show to the proper tribunal that he has been improperly convicted. If there had been any defect in the indictment, or in the proceedings at the trial apparent • upon the record no doubt a motion in arrest of judgment would have been seasonable. State v. Soule, 20 Maine, 19.
The purpose of these two motions being the same, that of ultimately defeating the final judgment it is apparent that a seasonable time for the one would also be seasonable for the other. But while the motion in arrest is a recognized step in the proceedings of a criminal trial presented for the purpose of correcting some error in the law,, the motion for a new trial is addressed to the *333judicial discretion of the court. True every party has a legal right to a fair and impartial trial, and to secure this he is to bo tried by the principles of law applicable to his case and the proceedings, as well for the selection of a jury as in other respects, are to be such as are established by law; and for a violation of any of them the remedy is by exceptions. Hence when these exceptions are disposed of ordinarily the legal rights of the respondent have been complied with, or legally it must be so presumed. If therefore by any subsequent developments or newly discovered evidence there is reason to suppose the defendant has not been fairly tried, his appeal must be to the discretion of the court. Com. v. Green, 17 Mass. 515. The remarks in the opinion in that case on page 538, though applied to the admission of a witness claimed from subsequently discovered evidence to have been incompetent, are forcible, and equally applicable to the subsequent discovery of the supposed incompetence of a juror.
In State v. Elden, 41 Maine, on page 171, Tenney, C. J., in the opinion says: “It was then (after conviction, exceptions having been filed and disposed of) the right of the attorney for the state to move for sentence, and no power in the least effectual could the convict claim, as his right under the laws of this state, to interpose a valid objection thereto.”
Thus though it was discretionary with the justice presiding whether the sentence should be delayed for a hearing upon the motion, yet the ruling that the motion was too late was technically erroneous; but if in such case exceptions will lie, we see no occasion for sustaining them in this case for a full hearing was had, all the evidence was taken and the whole is now here.
II. A further ruling excepted to is that the motion is not sustained by the evidence and that it be dismissed. This involves a question of jurisdiction. It is contended that such a motion is for the law court only, and should have been at once reported to that tribunal for a decision.
Under the present organization of our judiciary the law court is not a court for trials and has such and only such jurisdiction as is conferred upon it by statute, and the only provision relied upon to support the rule contended for, is found in H. S., c. 77, § 13, as *334amended by e. 23.1 of the acts of 1874. It is this: “Cases in which there are motions for new trials upon evidence reported by the judge.” In the same section is another clause which reads thus : “cases, civil or criminal, presenting a question of law.”
In State v. Hill, 48 Maine, 241, in a well considered opinion it was held that the former clause referred to civil cases alone while the latter included criminal. In State v. Smith, 54 Maine, 33, that decision was affirmed. The reason upon which these decisions rest would seem to be conclusive. It is found in other provisions of the statute providing the manner in which different questions shall be carried from the trial to the law court. In c. 82, § 33, R. S., which relates exclusively to civil cases, is a provision for reporting motions to the law court. This provides not only for motions such as was considered in State v. Hill, but “for motions founded on any alleged cause hot shown by the evidence reported” but depending upon testimony to be taken. This includes of course such a motion as is here pending when made in a civil action. In R. S., c. 134, § 26, which relates to criminal cases only, is found the provision for questions of law in such cases and this provides that all such questions shall be raised by exceptions, or “any question of law allowable by exceptions,” may be reported. Hence this motion like that in State v. Hill, is not provided for by statute, and like that must depend upon the principles of the common law and can therefore be heard only in the court where it was tried. That it can there be heard has never been doubted since the decision in Com. v. Green, supra. In State v. Kingsbury, 58 Maine, 238, where a motion of this kind was entertained, it came up with the bill of exceptions and no question as to its propriety was raised. On the other hand a motion depending upon the same law, in State v. Verrill, 54 Maine, 581, a case of great importance, defended and prosecuted by able counsel and carefully examined by at least two justices, was passed upon by the court in which it was tried without any question as to its jurisdiction.
III. Notwithstanding our conclusion that we have no jurisdiction of this motion, we deem it proper to say that under the provisions in the exception that if any of the rulings were erroneous “the *335law court is to make such a disposition of the motion as the law and evidence require,” we have carefully examined the evidence reported and find no error in the ruling that the motion is not sustained.
As regards the testimony of the witness Gilley it is so contradictory in itself and so entirely overborne by the testimony on the part of the goyernment that it can have no weight whatever in sustaining the allegations.
The testimony of Herrick giving it its full force proves no opinion or prejudice on the part of the juror. It does not appear that before the conversation testified to, the juror had any information upon the subject or that during the conversation any question was made as to the respondent’s guilt or innocence, but rather a condemnation of such an act in any man. It was evidently such a conversation as under the circumstances might take place without leaving any impressions upon his mind inconsistent with his impartiality as a juror, and certainly entirely insufficient to show his answers under oath to the questions put as to his qualifications untrue. State v. Kingsbury, supra.
The exceptions must be dismissed. The entry to stand upon the docket as ordered by the court below. Motion heard a/nd dismissed.
Appleton, C. J., Walton, Barrows, Libbey and Symonds, JJ., concurred.