California Charles Howard Fairall.

Criminal law and procedure of California including the penal code of California online

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«6 Ex parte Young Ah Gow, 73 Cal. 438; People v. Meyer,

73 Cal. 549; People v. Wheatley, 88 Cal. 117; People v.

Brooks, 65 Cal. 295; People v. Barton, 88 Cal. 178.

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required on a plea of guilty.*^ The defendant is, however,
estopped to deny the admission of a prior conviction with-
out first withdrawing his plea thereto.**

•7 People V. Carrolton, r? Cal. 559; People v. Meyer, 7B

Gal. 549.
«8 People V. Appleton, 120 Cal. 250.

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The accused person has the right to the personal
attendance of witnesses on his behalf, and where they can
be had without unreasonable delay, he has a right to have
the cause continued for that purpose.^ Upon an appli-
cation for a continuance on the ground of absence of wit-
nesses, the application should be supported by affidavits
which show that the applicant has used due diligence in
his endeavor to procure the attendance of the witnesses,
and in his preparation for trial.* And diligence must be
shown also that he has tried to procure others who could
testify to the same facts,' and that the application is not
made for delay.* It must further show that the testimony
or presence of the witness can be procured at a sub-
sequent date.* The affidavits must be made by the party
and not by his attorney.* It must set forth the reasons

1 People V. Dodge, 28 Cal. 445; People v. Brown, 46 Cal.
103; WiUard v. Superior Court. 82 CaL 465; People v.
Francis, 38 Cal. 187.

a People v. Baker, 1 Cal. 404; People v. Winters, 126
Cal. 325; People v. Quincy, 8 Cal. 89; People v. Gaunt,
28 Cal. 158; People v. Williams, 24 Cal. 38; People v.
Sanders, 114 Cal. 216.

« People v. Williams. 24 Cal. 31.

* People V. Putman, 129 Cal. 258.

» People V. Winters, 125 Cal. 325; People v. Ashnauer,
47 Cal. 98; People v. Leyshon, 108 Cal. 444; People v.
Breen, 130 Cal. 72; People v. Jocelyn, 29 Cal. 562; Peo-
ple y. Lewis, 64 Cal. 402; People v. Dodge, 28 Cal. 445;
People V. aaunt, 23 Cal. 156; People v. De Lacey, 28
Cal. 590; People v. Jenkins, 56 Cal. 4; People v. Cleve-
land, 49 Cal. 577; People v. Wade, 118 Cal. 673.

« People V. Jenkins, 56 Cal. 4.


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tor the belief and the nature of the information upon which
it is founded.^ It should state the facts from which the
court may infer that the witness may be procured.® An
affidavit showing an unsuccessful search for the witness
without showing that his attendance can be secured in a
Treasonable time, is not sufficient.® It must further show
that the witness cannot be readily reached by an attach-
ment/® and that a subpoena has been issued for him ;" that
the testimony is not merely cumulative and that the appli-
cation is not made for delay," and should state the facts
the witness would testify to if present, and show that it
cannot be otherwise procured.*^ The testimony must be
relevant and material.** The affidavit must not be made
in the alternative as, that he can procure the attendance
of a witness out of the state, or his deposition." The
accused is entitled to a continuance where he was misled
by a promise of the witness to appear at the trial." Upon
appeal from brder refusing continuance the affidavit used
in support of the application must be embodied in a bill of


The granting or refusing of applications for continuances

7 People V. Brown, 46 Cal. 103; People v. Ah Yute, 53 Cal.
614; People v. Leyshon, 108 Cal. 444; People v. Francis,
38 Cal. 183.

8 People V. Ah Yute, 58 Cal. 614; People v. Lewis, 64 Cat
403; People v. Leyshon, 108 Cal. 444; People v. Wade,
118 Cal. 673.

9 People V. Wade, 118 Cal. 672.

10 People V. Weaver, 47 Cal. 106.

11 People V. Lampson, 70 Cal. 204.

12 People V. Thompson, 4 Cal. 239; People v. Williams,
24 Cal. 38; People v. Gaunt, 23 Cal. 158; People v. Jen-
kins, 56 Cal. 6; People v. Francis, 38 Cal. 183.

18 People V. Ah Fat, 48 Cal. 61; People v. Lampson, 70 Cal.
204; People v. Wade, 118 Cal. 673; People v. Mellon, 40
Cal. 648; People v. Quincy, 8 Cal. 89; People v. Gaunt,
23 Cal. 158; People v. Williams, 24 Cal. 38.

14 People V. Williams, 43 Cal. 344.

15 People V. Francis, 38 Cal. 183.
i« People V. Brown, 46 Cal. 103.
i«a People V. Weaver, 47 Cal. 106.

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rests in the sound discretion of the court,*^ but it is an
abuse of discretion to refuse a continuance when a proper
showing is made.^® It is not, however, to refuse a con-
tinuance to enable the prosecution to procure witnesses.^*
And it is not an abuse of discretion where there is no show-
ing that the application is made in good faith.^® An appli-
cation in bad faith,^^ or which is too long delayed, should
be denied.^^


Where the failure to endorse the names of the witnesses
on the indictment; operates as a surprise to the defendant, a
continuance should be granted on a proper showing,^^ but
the application must be supported by affidavits.^* It may
be had for the purpose of producing evidence upon a
motion to set aside an indictment,^* or for further time for
pronouncing judgment.^* But the trial will not be post-
poned until the determination of an appeal on the issue of


If the prosecution admits the fact the applicant intends
to prove by the absent witnesses, the court may refuse the
continuance,^® but to defeat the application, the people must
admit the truth of the facts made in the affidavit, not
merely that the witness would so testify.^* But the

" People V. Jocelyn, 29 Cal. 562; People v. CoUins, 75 Cal.

411; People v. Gk)ldenson 76 Cal. 328; People v. Gaunt,

23 Cal. 156; People v. Jenkins, 56 Cal. 5; People v. Ley-

shon. 108 Cal. 440.
18 People V. Plyler, 121 Cal. 160; People v. Dodge, 28 Cal.

445; People v. McCrory, 41 Cal. 458; People v. Brown,

46 Cal. 103.
i» People V. Treadwell, 69 Cal. 227.

20 People V. De Lacey, 28 Cal. 590.

21 People V. Mortimer, 46 Cal. 114.

22 People V. Beam, 66 Cal. 394; People v. Logan, 123 Cal.

28 People V. Freeland, 6 Cal. 96; People v. Breen, 130 Cal.

24 People V. Symonds, 22 Cal. 349; People v. Jocelyn, 29
Cal. 564.

25 People V. Travers, 88 Cal. 23.^.
28 People V. Holmes, 126 Cal. 462.

27 People V. Molce, 15 Cal. 330.

28 People V. Young, 108 Cal. 8.

2» People V. Diaz, 6 Cal. 248; People v. Brown. 54 Cal. 243.

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prosecution is not required to admit that a deposition taken
at the preliminary examination is absolutely true before
it can be admitted.*^ The error is not cured, in the court
refusing to grant a continuance on the ground of sickness
of witnesses, by the fact that the district attomej' stated
during the trial that the witness was well, and the counsel
for the defendant answered that he was too ill to be in


The absence of the counsel, on account of sickness, is
sufficient ground upon which to grant a continuance,** but
where the continuance is asked on the ground of the
absence of a counsel, engaged in trying another case, it
must be shown that he became employed therein before
the criminal case had been set for trial. And in case of his
attendance upon the state legislature, it must appear that
his engagement as an attorney was made before the com-
mencement of the session of legislature.*' A continuance
upon the ground of intoxication of counsel is within the
discretion of the court. Counsel cannot, by becoming
intoxicated, give to the defendant the right to indefinite

80 People V. Leyshon, 108 Cal. 440.

81 People V, Plyler, 121 Cal. 160.

82 People V. Logan, 4 Cal. 188.

88 People V. Goldenson, 76 Cal. 328.
2* People V. Warren, 130 Cal. 678.

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Where there exists such an excitement or prejudice in
the whole county upon the subject as would preclude the
possibility of procuring an impartial jury without diffi-
culty, or would in any manner interfere with the impartial
administration of the laws, and this fact is made to appear
to the court by affidavits, the court should change the
venue.^ It will always be granted, on the application of
the defendant, where no fair and impartial trial can be had
in the county where the action is pending,* but the fact
that a jury cannot be selected from a portion of the county
who would give the defendant a fair trial is not a suffi-
cient ground,* nor that a number of citizens united to
employ counsel to prosecute the defendant.*


The affidavit of the accused alone that he cannot have
a fair trial is not sufficient.^ The affidavit should state
the facts and circumstances from which the conclusion
that a fair trial cannot be had is deducible.® The court is

1 People V. Suesser, 132 Cal. 631; People v. Toakum,
53 Cal. 566.

a Penal Code 1033; People v. Wong Ark. 96 Cal. 137.

8 People V. Baker. 1 Cal. 404.

« People y. Graham, 21 Cal. 265. But it lyas held in Peo-
ple v. Lee, 5 Cal. 3^3, that where one hundred citizens
united in employing counsel to prosecute the defendant
it was a sufficient showing, in the absence of al counter-
affidavit, to entitle the defendant to a change of venue.

5 People v. Graham, 21 Cal. 261.

« People V. Yoakum, 53 Cal. 566; People v. McCauley, 1
Cal. 879; People v. Congleton, 44 Cal. 92.

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not ousted of jurisdiction to try by the mere filing of an
affidavit of prejudice and bias/ for counter-affidavits may
be filed by the people.® Upon the application for a change
of venue, if witnesses are desired to prove the allegations
of prejudice and bias, the application for a subpoena for
such witnesses must be supported by affidavits.* An affi-
davit on information and belief is insufficient.^^ The
granting or denial of the application rests in the sound
discretion of the court,^^ and is reviewable only in cases
of gross abuse of discretion.^^ But it is not a matter of
arbitrary discretion. The discretion must be warranted by
the facts disclosed by the record.*' The judge must find
the facts as to the bias from the affidavits and showing


The application for a change of venue comes too late
after the jury is obtained," but the court may postpone
the motion, until the impanelment of the jury is attempted,
for the purpose of determining whether or not
such prejudice really exists.** When a motion to
change the venue is postponed, by the court, and
the court afterwards intimates to counsel that it
may be renewed and the counsel declines to renew,

T Ex parte Wright, 119 Cal. 401.

8 People V. Yoakum. 53 Cal. 566; People v. Majors, 66 Cal.
147; People v. Gtoldenson, 76 Cal. 336; People v. Vincent,
95 Cal. 427; People v. Fredericks. 106 Cal. 558.

9 People V. Elliott, 80 Cal. 296.
10 People V. Shuler, 28 Cal. 490.

" People V. Vincent J 95 Cal. 425; People v. Perdue, 49 Cal.
425; People v. Congleton, 44 Cal. 92; People v. Yoakum,
53 Cal. 567; People v. Goldenson, 76 Cal. 339; People V.
Elliott. 80 Cal. 298; People v. Mahoney, 18 Cal. 181.

12 People V. Fisher, 6 Cal. 154; People v. Congleton, 44
Cal. 95; People v. Goldenson, 76 Cal. 339; People v.
Elliott, 80 Cal. 298.

13 People V. Yoakum, 53 Cal. 568.

14 People V. Mahoney, 18 Cal. 188; People v. Perdue, 49
Cal. 427; People v. Elliott, 80 Cal. 298; People ▼.
Yoakum, 53 Cal. 568; People v. Compton, 123 Cal. 403;
reople V. Rodley, 131 Cal. 240.

" People V. Cotta, 49 Cal. 166.

i« People V. Plummer, 9 Cal. 299; People y. GJoldenson,
76 Cal. 340; People v. Fredericks. 106 Cal. 558.

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ohahqb of vsnqb. SS7

the failure of the court to change the venue is not error /^
and the motion is properly denied where it is not renewed
after leave granted to renew.*' The failure to present a
motion, at the time to which the hearing of it was con*
tinned, waives the same.*®


The defendant has the right to a trial by a jury selected
from the county where the crime is alleged to have been
committed, and any statute enacted by legislature which
authorizes a change of venue to be made upon the appli-
cation of the people, without the consent of the defendant,
is unconstitutional and void.^^


A change of venue cannot be granted on the ground of
the disqualification of a judge to try the cause,^* a change
of judges may be had for that reason.^^ The bias or
prejudice of the judge, upon an application for a change
of judges, must be determined by affidavits alone. The
judge is not permitted to use his own knowledge of the
matter and where no counter affidavits are filed it is the
duty of the judge to grant the motion.^* An erroneous

17 People V. Plummer, 9 Cal. 298.
i« People V. Qoldenson, 76 Cal. 328.
i» People V. Fredericks, 106 Cal. 654.

20 People V. Powell, 87 Cal. 348.

21 People y. Shuler, 28 Cal. 490; In re Jones, 103 Cal. 398;
People V. McGarvey. 66 Cal. 327; Penal Code 1033.
Before the amendment of section 170 C. C. P. in 1897
to allow a change of judges for such cause, it was
uniformly held that bias and prejudice of the judge
did not disqualify him from trying a case. See People
V. Mahoney. 18 Cal. 181; People v. Williams. 24
Cal. 35; People v. Shuler, 28 Cal. 495; In re Jones, 103
Cal. 398; In re Guerrero, 69 Cal. 102.

22 Sec. 170 C. C. P.: People v. Compton, 123 Cal. 123;
People V. Rodley, 131 Cal. 240.

2s People V. Compton, 123 Cal. 403; People v. Rodley 181
Cal. 240.

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ruling by the court is not evidence of bias.** The change
of judges during trial is an irregular proceeding,^ but
after trial another judge legally presiding may pronounce

s« People y. Williams, 24 Cal. 81.
M People V. Eckert, 16 CJal. 111.
M People ▼. Henderson, 28 Cal. 466.

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There is no distinction to be observed in the selection of
grand and petit jurors, but the names of all jurors selected
are to be placed in the same box ; and it is unnecessary for
the court in making its order designating the number of
grand and trial jurors required for the ensuing year, to
designate the separate number of each class 9f jurors
required.^ The object of the statute in requiring that the
clerk's certificate to the list of persons drawn for jurors
shall state the date of the order directing the drawing, is
simply to identify such order; and where the record suflS-
ciently identifies the order, the failure of the clerk* to cer-
tify, is an immaterial error.^ It is not error for a dis-
qualified judge to draw the panel, as he does not thereby
sit or act in any cause.^ The order directing the "drawing
of the names of thirty-five good and lawful men" to be
summoned from the body of the county, is a proper order.*
The order designating the names to be drawn need not be
signed by the judge. ° Any immaterial departure from
the prescribed forms is not fatal, if the defendant has
opportunity to secure a competent and impartial jury.*
The selection of the jury, by the board of supervisors, need
not be at a regular or special meeting, but may be at an

1 People V. Crowey, 56 Cal. 36.

2 People V. lams, 67 Cal. 115.

8 People V. Ah Lee Doon, 97 Cal. 171.
* People V. Wheeler, 65 Cal. 77.
B People V. Baldwin, 117 Cal. 244.
« People V. Davis, 73 Cal. 355.

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adjourned meeting/ and the names left in the box from a
list of qualified jurors issued the previous year may be
included in the drawing list by the supervisors.® Where
the jurors are legally drawn, but have not been legally
summoned, additional jurors may be summoned.'


Where the sheriff and coroner are both disqualified from
summoning a jury the court should appoint an elisor."
But the sheriff is not disqualified by reason of believing that
the defendant committed the homicide, if he had no opinion
as to the justification under which it was done. The same
qualification applies to the sheriff in summoning the jury
as it does to a juror who is to try the defendant; and, if
the sheriff is qualified as a juror, he is qualified to summon
the jury.^^ The court should require a showing that the
sheriff is disqualified before making an appointment of an
elisor.^^ It must appear that not only the sheriff, but the
coroner of a county is also disqualified." But where they
are both disqualified, the elisor ought to be appointed,"
and the court should follow the statutes as closely as pos-
sible in making the appointment.*" The word "elisor" has
a peculiar and appropriate meaning in law, and denotes
a person appointed to serve process or return a jury when
the sheriff and coroner have been challenged as incom-
petent.*® The return of the sheriff upon the venire is no
part of the judgment roll, unless incorporated in a bill of

7 People V. Baldwin. 117 Cal. 244.
«* People V. Rodley, 131 Cal. 240.

9 People V. Devine, 46 Cal. 46; People v. Sehorn, 116 Cal.

10 People V. Sehorn. 116 Cal. 503.

11 People V. Ryan, 108 Cal. 581.

12 People V. Irwin. 77 Cal. 494.

13 People V. Young, 108 Cal. 8; People v. Sehorn, 116 Cal.
509; People v. Fellows, 122 Cal. 238; Bruner v. Superior
Court, 92 Cal. 239; People v. Ebanks, 117 Cal. 652.

1* People V. Ebanks, 117 Cal. 652; People v. Fellows. 122
Cal. 238.

16 People V. Irwin, 77 Cal. 499; People v. Yeaton, 75 Cal.

i« Bruner v. Superior Court, 92 Cal. 239.

17 People V. O'Brien. 88 Cal. 483.

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The defendant has the right to challenge for cause, and
peremptorily; and the failure of the court to instruct the.
defendant of such right is reversible error, if prejudical
to him/* but where he is represented by counsel, a failure
to inform him of such right is not error.*® Where, how-
ever, he has no counsel, it is.^*^ Defendants jointly
indicted have a right to separate trials, but when tried
together, they must join in the challenge to a juror.^* An
improper allowance of a challenge of the people will defeat
the verdict.*^


Objections to the panel must be made before the jury
is swom.23 They cannot be made after verdict,^* and must
be taken only on statutory grounds. A challenge to the
panel may be founded only on a material departure from
the forms prescribed in respect to the drawing and return-
ing of the jury, or on the intentional omission of the sheriff
to summon one or more of the jurors drawn. ^^ Thus it
cannot be based on the objection that some of the jurors
were also on a former special venire, dismissed on the
ground of bias and prejudice of the summoning officer,"
or upon objections which merely go to the mode of service
of the venire,^^ or upon the ground of non-residence of some
of the jurors,^* or that some are not qualified,^*^ or because no
jury has been drawn after the court has directed one

i« People V. O'Brien. 88 CaL 483; People v. Moore, 103
Cal. 511.

19 People V. Ellsworth, 92 Cal. 594.

20 People V. Moore. 103 Cal. 508.

21 People V. McCalla, 8 Cal. 801.

22 I>eople V. Stewart, 7 Cal. 141.

28 People V. Ollveria, 127 Cal. 376; People v. Durrant. 116

Cal. 195.
2« People V. Ah Lee Doon, 97 Cal. 171.
25 People V. Welch, 49 Cal. 174; Bruner v. Superior Court,

92 Cal. 253; People v. Wallace, 101 Cal. 288; Levj' v.

Wilson. 69 Cal. 111.
2« People V. Vincent, 96 Cal. 425; People v. Durrant, 116

Cal. l^r People v. Sehorn. 116 Cal. 509

27 People V. M'Kay, 122 Cal. 628.

28 People V. Wallace, 101 Cal. 281.
20 People V. Durrant, 116 Cal. 179.

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drawn.*® It cannot be allowed where the court has ordered
the selection of a jury specially,*^ except on the ground of
the bias of the officer who summoned them.** That the
names of some of the jurors were not on the assessment
roll,**or that some were non-residents of the county ,**or that
the appointment of an elisor was irregular, is not ground
of challenge to a special venire, but such objections may
be reviewed on appeal as an alleged error at law occuring
during the trial.** Where the challenge is made on account
of the bias of the officer summoning the jury, the bias of
the officer must be upon a ground which would be good
cause for a challenge against the juror. The test of the
sheriffs qualification is whether he would be qualified to
sit as a juror.** The denial of the challenge on the ground
of disqualification of the sheriff will not be reviewed on
appeal where the evidence of the mental condition of the
officer is conflicting.*^ If the court has any doubt as to the
identity of the uncertified list it should sustain the chal-
lenge to the panel.** The challenge to the panel should
be tried by oral examination of witnesses in court, and
cannot be heard upon affidavits.** The discharge of the
panel is not reversible error where the defendant is not pre-


In impaneling a jury twelve names must be drawn from
the box, and the defendant must be allowed to examine the
whole twelve before exercising his right of peremptory

30 People V. Davis, 47 Cal. 93; People v. Sehom, 116 CaL

81 People V. Vance, 21 Cal. 401; People v. Williams, 43

Cal. 349.
«2 People V. Wallace, 101 Cal. 281.
38 People V. Searcey, 121 Cal. 1; People v. Young, 108 r'aL

8; People v. Durrant, 116 Cal. 194.

84 People V. Wallace, 101 Cal. 281.

85 People V. Fellows, 122 Cal. 233; People v. Welch, 49
Cal. 174.

86 People V. Coyodo, 40 Cal. 586.

8T People V. Hartman, 130 Cal. 487.

88 People V. Young, 108 Cal. 8.

80 People V. Brown, 48 Cal. 253; People v. Durrant, 116

Cal. 199.
*o People V. Murray, 85 Cal. 360.

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challenge as to any,** or his right to challenge for cause.
If any be accepted they must then be sworn, and a suffi-
cient number drawn to complete the jury, and the same
process repeated until the jury is completed.** But the
names of all the jurors from which the jury is to be drawn
must be in the box.*' The court is not permitted to place
a part of the panel in the box and draw the juiy therefrom.
If not a part of the regular panel, the court has no jauthority
to order jurors serving in another department of the court
to be brought in to try a cause, nor can they be included
in a special venire.** The failure of one of the veniremen
to respond, is not ground for delay if there are enough
present without him.*" Jurors may be sworn individually
before the panel is completed.*® Objection to the impanel-
ment is waived by a failure to make it at the time.*^ A
juror on a special venire does not cease to be on the panel
by a failure to respond.*® A special panel may be ordered
although the special list is not exhausted.*® Where there
is no regular panel, the court may order a sufficient number
of persons for a trial jury.***


One of the chief safeguards against an unjust convic-
tion is the right of the defendant to peremptorily challenge
the jurors, and the courts should permit the freest exercise
of this right."* In cases where the penalty is less than
life imprisonment, the defendant is entitled to ten chal-

41 People V. Riley, 65 Cal. 107.

*2 People V. Scogglns. 37 Cal. 676; People v. Russell, 4^

Cal. 122; People v. Hickman, 113 Cal. 84; People v.

lams, 57 Cal. 115.
4« People V. Edwards, 101 Cal. 543.

44 People V. Compton, 132 Cal. 484.

45 People V. CoUins. 105 Cal. 504.

46 People V. Reynolds, 16 Cal. 129.

47 People V. Johnson, 104 Cal. 418.

48 People V. CoUins, 105 Cal. 504.

40 People V. Durrant, 116 Cal. 179; People v. Sehom, 116
Cal. 509.

50 People V. Stuart, 4 Cal. 218; People v. Vance, 21 CaL
403; People v. WiUiams, 48 Cal. 349.

51 People V. Edwards, 101 Cal. 543.

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lenges;*^^ he is entitled to twenty in other cases.^' Where
the trial is of a prior offense and robbery,^* or the only
sentence that may be imposed is life imprisonment, he is
entitled to twenty.*^*^ In robbery,^* and rape,°^ he is entitled
to ten only.^® The defendant must have exhausted all of
his peremptory challenges before he can complain of the

Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 26 of 77)