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

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unqualified statement was made wilfully, that is, with a
consciousness that it was not known to be true and with the
intent that it should be received as a statement of what was
in fact true.^

1 Penal Code 123.

2 People V. Von Tledeman, 120 Cal. 128.



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43^ CBium^ jj^ .MU) efi^qm^jaE.

RAPE— P^CFir^ITIOK.

RAPE.

The court instructs the jury that rape is an act of sexual
intercourse accomplished with a female, not the wife of the
perpetrator, where she resists, but her resistance is over-
come by force or violence, or where she is prevented from
resisting by threats of immediate and great bodily harm,
accompanied by apparent power of execution.

PENETRATION — EMISSION.

The court instructs the jury that proof of any penetra-
tion, however slight, is suflScient in a case of rape, and proof
of emission is not necessary.

embraces "assault with intent to commit rape;" also
"assault.''

Embraced within the offense charged in the indictment arc
two other offenses, viz.: "Assault with intent to commit
rape," and "assault,*' sometimes called simple assault. An
assault is an unlawful attempt, coupled with a present abil-
ity, to commit a violent injury on the person of another.

UNDER age of CONSENT. FACTS NECESSARY TO A VERDICT
OF GUILTY.

The court instructs you that in order to convict the defend-
ant as charged in the information, it is necessary that the
evidence prove to your satisfaction, beyond a reasonable
doubt :

1. That the defendant, on or about the — day of ,

190 — , at and within the county of , state of Cali-
fornia, did wilfully, unlawfully and feloniously have sex-
ual intercourse with , the female child mentioned

in the information.

2. That at the time of the alleged commission of the act

of sexual intercourse the said was under the age

of sixteen years.

3. That the said was not the wife of the defend-
ant.



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These atfe the frtaterfa! and essentiat eteifieAte embraced
in the offense charged in the information; and rf yoA are
satisfied from the evidence in this case of the truth d€ fee
charge, and that all and each of said elements aa^e prd^vcn
beyond a roasotiable doubt, then it will be yow duty to
find the defendant guilty "as charged.

FORCE UNNECESSARY UNDER AGE OF CONSENT.

The court instructs you that it is the law of the state
of California that any female under the age of sixteen
years shall be incapable of consenting to an act of sexual
intercourse, and that any one committing an act of sexual
intercourse with a female under such age, and not his wife,
shall be guilty of the crime of rape, notwithstanding he
obtained her consent. Therefore, whether such child con-
sents or resists, is wholly immaterial.

CORROBORATION OF PROSECUTRIX — EXTENT OF.

The court further instructs the jury that it is not essen-
tial to a conviction in this case, that the prosecutrix



should be corroborated by the testimony of other witnesses
as to the particular acts constituting the offense. It is
sufficient if you believe from her evidence and all the other
testimony and circumstances in proof in the case, beyond
a reasonable doubt, that the crime charged has been com-
mitted.*

EVIDENCE OF PROSECUTRIX SCANNED.

The court further instructs the jury that while it is the law
that the testimony of the prosecutrix should be carefully
scanned, still this does not mean that such evidence is never
sufficient to convict. If you believe the prosecutrix, and
are satisfied from all of the evidence in the case, beyond a
reasonable doubt, of the defendant's guilt, then you should
so find.

FORM OF VERDICT.

It is competent for you under this information to find
either one of four verdicts: Rape, as charged in the infor-
mation; assault, with intent to commit rape; assault, and
not guilty, as you may be convinced from the evidence in
the case.

1 People V. Mayes. 66 Cal. 598.



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438 CBIMUiAL )^W AND PBQOBDURE.

GAMING— WHAT IS PERCENTAGE GAME.

The court instnicts the jury that a percentage game
within the meaningj of the law, is a game conducted or car-
ried on by one or more persons at which others play with
cards, dice or any device for money, checks, credit, or any
other representative of value, and where a portion or part
of the amount bet or put up as the stake by those who play
at the game is taken or received by the person or persons
who conduct or carry on the game, as his or their portion
of the money so lost or won.



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CHAPTER LXI.



RBCEIVING THE VERDICT.



The jury having agreed upon their verdict, they must be
conducted into the court by the officer having them in
charge. Their names must then be called, and if all do
not appear, the jury must be discharged without giving a
verdict.^ When the jury appear they must be asked by
the court, or the clerk, whether they have agreed upon their
verdict, and if the foreman answers in the affirmative, they
must, on being required, declare the same.' When the
verdict is rendered, and before it is recorded, the jury
may be polled, at' the request of either party, in which case
they must be severally asked whether it is their verdict,
and if any of them answers in the negative, the jury must
be sent out for further deliberations.* A failure to poll
the jury does no prejudice to the defendant, if all the jury
were present and agreed thereto.* The defendant may
waive the recording of the verdict in the presence of the
jury.' 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.*

1 Penal Code 1147.
s Penal Code 1149.
3 Penal Code 1163; People v. Nichols, 62 Cal. 618.

* People V. Rodtmdo/ 44 Cal. 541; People v. Nichols, 62
Cal. 520.

People V. Smalling, 94 Cal. 112.

• Penal Code 1164.



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440 CRIMINAL LAW AND PROCEDURE.

KINDS OF VERDICTS.

The jury may render a general verdict, or, when they
are in doubt as to the legal effect of the facts proved, they
may, except upon a^ trial for libel, find a special verdict."^

, GENERAL VERDICT.

A general verdict upon a plea of not guilty is either
"guilty'* or "not guilty," which imports a conviction or
acquittal of the offense charged in the indictment. Upon a
plea of a former conviction or acquittal of the same offense,
it is either "for the people" or "for the defendant.'' When
the defendant is acquitted on the ground that he was insane
at the time of the commission of the act charged, the ver-
dict must be "not guilty by reason of insanity." When the
defendant is acquitted on the ground of variance between
the indictment and the proof, the verdict must be "not
guilty by reason of variance between indictment and proof."*
A general verdict of guilty will not sustain a conviction
when one or more of the counts of the indictment do not
state an offense,® and when there are two defenses pleaded
by the defendant there must be a verdict on both before
a conviction can be sustained.^** The jury need not find
on the plea of prior conviction where the defendant con-
fesses it,^^ but where the plea is one of not guilty, the jury
must find on the prior conviction." Where the prior con-

7 Penal Code 1150.

8 Penal Code 1151.

People V. Eppinger, 109 Cal. 294; People v. Gamett, 129
Cal. 364; People v. Mitchell, 92 Cal. 590; People v Smith.
103 Cal. 567.

10 People V. Helbing, 59 Cal. 567; People v. Fuqua, 61 Cal.
377; People v. Tucker, 115 Cal. 338; People v. Lewis, 64
Cal. 403; People v. Brooks, 65 Cal. 296; People v. Neason,
67 Cal. 225: Ex parte Young Ah Gow, 73 Cal. 443; People
V. Wheatley, 88 Cal. 118; People v. King, 64 Cal. 538;
Penal Code 1158.

11 People V. Brooks, 65 Cal. 295; Ex parte Young Ah Gow,
73 Cal. 442; People v. Meyer, 73 CaL 549^ P^ple v.
Wheatley, 88 Cal. 117.

12 Pfeople V. Eppinger, 109 Cal. 294; People v. HelBlng, 69
Cal. 667; People v. Fuqna, 61 Cal. 377; People v. Tucker,
115 Cal. 338; People v. Kinsey, 51 Cal. 278; Penal Code
1158.



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RtJC^tVim? THI5 VKIrt>lfCT. 441

Vfction is confessed and the verdict of the jury is guilty as
to the crime charged, the defendant may be sentenced as
for a prior conviction.^^

SPECIAL VERDICT.

A special verdict is that by, which the juty fiftd the facts
only, leaving the judgment to the court. It must present
the conclusions of fact as established by the evidence, and
Hot the evidence to prove them, and these conclusions of
fact must be so presented as that nothing remains to the
court but to draw conclusions of law upon them.** The
special verdict must be reduced to writing by the jury,
or in their presence entered upon the minutes of the court,
read to the jury, and agreed to by them, before tftey are
discharged.**^ The special verdict need not be in any par-
ticular form, but is sufficient if it presents intelligibly the
facts found by the jur>\*"

CONTENTS OF VERDICT.

Whenever a crime is distinguished into degrees, the jury,
if they convict the defendant, must find the degree of the
crime of which he is guilty.*^ Thus a general verdict with-
out stating the degree is a nullity in burglary** and in mur-
der,*® but a verdict of ^'guilty as charged" is sufficient as
to degree,^® and is a conviction of the crime charged in the
indictment.^* It must, by reference to the indictment, con-
fain all the elements of the crime.'* It must specify the

13 Ex parte Young Ah Gow, 73 Cal. 438; People v. Gutier-
rez, 14 Cal. 83; People v. Fowler, 88 Cal. 140; Bfx parte
Williams, 89 Cal. 426.

14 Penal Code 1152.
IB Penal Code 1153.
i« Penal Code 1154.

17 Penal Code 1157.

18 People V. Travera, 73 Cal. 580.

10 People V. Campbell, 40 Cal. 129; People v. Lee Yune
Chong, 94 Cal. 386.

20 People V. Whitely, 64 Cal. 211; People v. Price, 67 Cal.
352 ;\ People v. Manners, 70 Cal. 429; People' v. Perez, 87
Cal. 123.

21 l^ople V. Perez, 87 Cal. 122; People v. Manners, 70 Cal.
428r l^eople v. Higuera, 122 Cal. 466.

22 People V. Cummlngs, 117 Cal. 497.



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442 CRIMIKAL LAW AMD PROCEDURE.

offense charged or some one included therein;*' the con-
viction of a lesser offense necessarily included in the greater
is proper." Thus, a charge of an assault with a deadly
weapon will support a verdict of assault to do bodily harm,**
and an information for an assault with a deadly weapon
will sustain a conviction of a simple assault.*' A verdict
of an assault **to do bodily harm upon the person" is equiv-
alent **to inflict upon the person of another a bodily injury/**^
Under a charge of assault with a deadly weapon with intent
to inflict great bodily injury, a verdict of guilty of an assault
with a deadly weapon is a conviction of a simple assault,**
but not a verdict of guilty of an assault with a deadly
-weapon, with intent to do bodily injury.*" If the jury is
authorized to fix the punishment and cannot agree, they
should find a general verdict.'^ Where the Jury states
they find a verdict of a designated crime, it means they
find the defendant guilty thereof,'^ and a verdict agreeing
that the defendant is* guilty is a finding of guilt.'* The
name used in the indictment may be used in the verdict
although not the true name,'^ and a misnomer is not mate-
rial, it is enough that the jury find the defendant guilty
without specifying his name therein.'* But where two
defendants are tried and the verdict finds the defendant

23 People V. Ah Gow, 53 Cal. 627; People v. West, 73 Cat

346.
2* People V. Gordon, 99 Cal. 227; People v. Lowen, 109 CaL

381; People v. Muhlner. 115 Cal. 306.
25 People V. Congleton, 44 Cal. 92; People v. Murat, 45 CaL

284; People v. Villarino, 66 Cal. 229; People v. Pape.

66 Cal. 367; People v. Savercool, 81 Cal. 651.
2e Ex parte Donahue, 65 Cal. 474; People v. Turner. 65 CaL

542; People v. Gordon, 99 Cal. 229.

27 People V. Congleton, 44 Cal. 92.

28 People V. Wilson, 9 Cal. 260; People v. Holland, 59 CaL
364; People v. Congleton, 44 Cal. 95.

28 People V. English, 30 Cal. 215.

30 People V. Llttlefleld, 5 Cal. 355; People v. Welch. 49 CaL
180.

31 People V. Perdue, 49 Cal. 425; People v. Visher. 96 CaL
314.

32 People V. Buckley, 49 Cal. 241.
S3 People V. Ah Kim, 34 Cal. 189.

3* People V. Boggs, 20 Cal. 432; People v. Ah Kim. 34 CaL
190; People v. Ferris, 56 Cal. 444; People v. Smith. 108
Cal. 568.



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RECEIVING THE VERDICT. 443

guilty, the verdict must be set aside,*'* and a conviction of
one not named in the indictment is an acquittal to the one
indicted,'* but the identity of the accused is sufficiently estab-
lished notwithstanding the omission of a middle initial.'^
A verdict of guilty imports a conviction of every material
allegation of the indictment,^* and is conclusive as to the
tendency and effect of the evidence;'® but a conviction
of a lesser offense included in the indictment must be
specified in the verdict.*® A recomm^dation to mercy is
no part of the verdict. The jury has nowmjKto do with
the punishment. Their province is to determiTOTtke guilt
or innocence of the accused, and the court may wholly ftisr
regard such a recommendation.*^! ^J\f

AMENDING THE VERDICT.

When there is a verdict of conviction, in which it appears
to the court that the jury have mistaken the law, the court
may explain the reason for that opinion, and direct the
jury to reconsider their verdict, and if, after the reconsider-
ation, they return the same verdict, it must be entered ; but
when there is a verdict of acquittal, the court cannot require
the jury to reconsider it. If the jury render a verdict
which is neither general nor special, the court may direct
them to reconsider it, and it cannot be recorded until it is
rendered in some form from which it can be clearly under-
stood that the intent of the jury is either to render a gen-
eral verdict or to find the facts specially, and to leave the
judgment to the court.** If the jury persist in finding
an informal verdict, from which, however, it can be clearly

35 People V. Sepulveda, 59 Cal. 343; Willard v. Archer, 63

Cal. 34.
8« People V. Ah Ye, 31 Cal. 451; People v. Boggs, 20 Cal.

435.
87 People V. Hettick, 126 Cal. 425; People v. Rolfe, 61 Cal.

540.
>8 People V. March, 6 Cal. 541; Ex parte Brown, 68 Cal.

180; People v. West, 73 Cal. 346.
99 People V. Magallones, 15 Cal. 426.
40 People V. March, 6 Cal. 541.
*i People V. Lee, 17 Cal. 76; People v. Wilson, 119 CaL

384.
« Penal Code 1161.



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4i4 CBmttML litW Aim Plt!d0MURE.

uirtcfStowJd' thiat their iitfention iis to find m fsorcfr ct the
drfendapftt ttpon the rsstfe, it mtrst be cfntsred in the terms
in whith it is fotindv and the court rtmst give jtidgment of
acquittsal. Bert no judipment of conviction can be given
unless the jury expressly find sigsdnst the defendant upon
the issue, or judgment is given against him on a special
vercfict** Where the jtn-y retcmis an informal verdict, it
is die duty of the court to explain the defects, and dirca
the jnry to put it in proper form.*^ The verdict may be
amended before it is accepted or the jury is drscheat^je^**
but not afterwards.** Informalities may be cured by refer-
ring to instructions which the jury expressly m enti on ed
therein.*^ An informal verdict is sufiScicnt if it can be
understood as being a general verdict of guilty or not
guilty.*®

*3 Penal Code 1162.

4* People V. Dick, 34 Cal. 663; People v. Ah Gow, HZ Cai
627; Peopte v. Nichols, 62 Cal. 522.

*B People V. Lee Yune Chong, 94 Cal. 379; People v. Jen-
kins, 56 Cal. 4.

« P»wpl« V. BMleman^ 104 Cal. 615.

*7 People V. Holmes, 118 Cal. 444.

<8 People V. McCarty,; 48 Cal. 557; People v. Perdue, 49 CaL
427; People v. Douglass, 87 Cal. 2S8; Jolnson v. Viflfcw,
96 CaL 314.



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CHAPTER LXII.



§mMTKN.CE^ AND JUOGMENX.
/

A conviction imports that the accused is gudty, either by
verdict of a jury, a judgment against him upon i';dfmurrer,
upon a plea of guilty or upon a judgment of a couit^-^ jury
having heen waived in criminal cases not amounting to ^^1-
ony.*? In pronouncing judgment the judge must preliitijr
inarily state to the defendant the nature of the charge o(
which he is convicted,'® of his arraignment and his plea,
of his trial and the verdict of the jury finding him guilty,'*^
and be asked whether he has any legal cause to show why
judgment should not be pronounced against him/^ These
requirements are mandatory and a subatantial compliance
therewith is essential, for they affect important rights of
the defendant, who, when thus called upon, may show either
th^t he is insane or that there are grounds for a new trial,
or for arrest of judgment.*^^ And the court may in miti-
gation of punishment, in its discretion, receive evidence.**

JUDGMENT.

The judgment is sufficient although it does not state the
degree of the crime of which the defendant was convicted."*
The recitals in the judgment need not be of a particular
offense^ but only of a general offense within which the par-

*» Penal Code 689 and 1011 ;< Ex parte Brown, 68 Cal. 176.

50 People V. Murback, 64 Cal. 369; People v. Barton, 8S
Cal. 178.

51 People V. Jung Qung Sing, 70 Cal. 469.
5» Penal Code 1200.

5» People V. Walker, 132 Cal. 141.
5* People V. M'Kay, 122 Cal. 628.
w People V. McNulty, 93 Cal. 427.



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446 CRIMINAL LAW AND PROCEDURE,

ticular offense is included.'^® And a conviction of a lower
degree is proper where it is included in the offense charged.'^
But the judgment should show that all acts required by
the statute to be done up to that stage have been done."
It is not void, however, if it appears therefrom that the
court had jurisdiction and the defendant was convicted."
Where a sentence is illegal in part, it is not void so as to
authorize a discharge on habeas corpus before the legal
part of the judgment is satisfied.*® The sentence may be
amended before final judgment is entered,®^ and the court
may vacate a void sentence for fraud practiced on the
court.®* - But a judgment void in part is wholly void,**
except where the valid part may, be enforced without refer-
ence to the void part.** The order fixing the dat* of exe-
cution must give the defendant a reasonable time to pre-
pare a bill of exceptions thereon.** The judgment need
not state the venue if it appears in the information,** nor
the offense of which the defendant was convicted, if it
shows that he was indicted and convicted of some offense
and the court had jurisdiction to sentence,*^ except on a
direct attack on appeal.** Fixing the date of the execu-
tion in the judgment is not erroneous, but it is not the
best practice.*® A judgment is not void for uncertainty

56 Ex parte Murray, 43 Cal. 455.

57 People V. English, 30 Cal. 215; Kx. parte Ah Cha, 40
Cal. 427; Ex parte Max, 44 Cal. 581; E^ parte Donahue,
65 Cal. 475; People v. Pape, 66 Cal. 367; People v. Gor-
don, 99 Cal. 229.

58 Ex narte Gibson. 31 Cal. 620.

50 Ex parte Gibson, 31 Cal. 620; People v. Raye, 63 CaL

492.
60 Ex parte Mitchell, .J Cal. 1.
«i People V. Thompson, 4 Cal. 239.
62 People V. Woods, 84 Cal. 441.
03 Ex parte Kelly, 65 Cal. 154.

64 Overend v. Superior Court, 131 Cal. 280.

65 People V. Durrant, 119 Cal. 201; People v. Ebanks, 120
Cal. 629.

60 People V. Johnson, 88 Cal. 171.

67 Ex parte Gibson, 31 Cal. 620; People v. Burgess, 35 Cal.

118.
08 People V. Johnson, 71 Cal. 384; People v. Epplnger, 109

Cal. 298; S. C, 114 Cal. 352; People v. Kelly, 120 Cal.

273.
60 People V. Murphy, 45 Cal. 137.



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SSNTENCE AMD JUDGMENT. 447

though the defendant be imprisoned for a specified number
of years from the date of his incarcerationJ** The court
in determining the degree of crime need not follow any
particular form in the judgment.''* A recital in the judg-
ment that the defendant was found guilty of gaming at
tan as charged, is equivalent to the finding that the defend-
ant was found guilty of gaming at tan by carrying on and
conducting a game of tan.^^ When the judgment states the
offense of which the defendant was convicted and the pen-
alty imposed, it is sufficient.^' It is sufficient in form if
it recites the defendant be "punished by imprisonment in
the state prison," etc.^* Where the judgment shows that
when the defendant appeared for judgment, he was informed
by the court, or by the clerk under its direction, of the
nature of the charge against him, and of his plea, and the
verdict, if any thereon, and asked whether he had any legal
cause to show why judgment should not be pronounced
against him, it is sufficient.^" The burden is on the defend-
ant to show any legal cause why sentence of the court
should not be pronounced.^' The judgment may fix the
date of the imprisonment to commence at the time of the
delivery of the defendant to the warden.^^ A sentence
below the minimum,^® or above the maximum, is void, and
the judgment will be reversed with directions to proceed
to judgment on the verdict.^' The day of the execution
should be named in the warrant of death and not in the

70 People V. King, 28 Cal. 266; People y. Hughes, 29 Cal.
262.

71 People V. Noll, 20 Cal. 165.

72 People V. Sam Lung, 70 Cal. 515.

73 In matter of Ring, 28 Cal. 248; Ex parte Williams, 89
Cal. 421; People v. Trim, 37 Cal. 275; People v. Douglass,
87 Cal. 281; Ex parte Turner, 75 Cal. 228; Ex parte
Young Ah Gow, 73 Cal. 442; Ex parte Raye, 63 Cal.
492; Ex parte Dobson, 31 Cal. 499.

74 People V. Wheatley, 88 Cal. 114.

75 People V. Perez, 87 Cal. 122.

7« People y. Durrant, 119 Cal. 201.

77 People V. Hughes, 29 Cal. 258; People v. Burgess, 35 Cal.
118.

78 Ex parte Bernert. 62 Cal. 524. But this was doubted by
the court in Ex parte Soto, 88 Cal. 626.

7» People V. Riley, 48 Cal. 549; Ex parte Bemert, 62 Cal.
631,



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44S CBIMIIiAL JLf W A|U> BMCJSfiUSE.

judgment.®^ The defendant inay waive the time for sen-
tence, and consent that it be given immediately, as he may
waive any statutory right intended for his benefit; and
where the record does not disclose the contrary-, it will be
presumed that he did waive such right.®*

THE COMMITMENT.

A certified copy of the judgment properly entered is a
suflScient commitment,*^ and authority to detain the pris-
oner.*' It need not contain the words •*committed to the
sheriflF,"** but it should set forth the crime alleged against
the prisoner with convenient certainty. It should state not
only the offense charged, but such facts as are essential to
constitute the offense.**

PUNISHMENT.

A fine and imprisonment until paid may be adjudged
under a law imposing fine or imprisonment ;* or imprison-
ment for non-payment of fine at so much per diem may be
directed by the judgment.^ But both fine and imprisonment
cannot be imposed under a statute merely authorizing
either,' and imprisonment for non-payment of fine cannot
be imposed when sentence provides for other imprisonment
as a punishment.* Imprisonment may be ordered to be

«o People V. BoniUa. 38 Cal. 699; People v. Murphy, 45 Cal.

141.
»i People V. Robinson, 46 Cal. 94; People v. Johnson, 88

Cal. 174.

82 In matter of Brown, 32 Cal. 49; E2x parte Dobaon, 31 CaL
498; Ex parte Gibson, 31 Cal. 622.

83 In matter of Ring, 28 Cal. 248; Ex parte Ahem, 103 Cal.
414.

9* Ex parte Moan, 65 Cal. 216.
85 Ex parte Branigan, 19 Cal. 133.

1 Ex parte Chin Yan, 60 Cal. 78; Ex parte Lawrence, 60
Cal. 84; People v. Baldwin, 60 Cal. 435; People v. Miller.
82 Cal. 455.

2 Ex parte Ellis. 54 Cal. 204; Ex parte Chin Yan, 60 Cal.
80; Ex parte Harrison, 63 Cal. 300; Ex parte Henshaw,
73 Cal. 496; Ex parte Miller, 82 Cal. 465; People v. Bald-
win, 60 Cal. 435.

3 Ex parte Giltnore, 71 Cal. 624.

* People V. Hamberg, 84 Cal. 468; People v. Brown, 113
Gal. 36.



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fiBNT£NO£ AMD JUDGMENT. 449

in a city jail.'* Imprisonment for non-payment may be
added when judgment is for fine only, but it must be
limited to the maximum of the period for which imprison-
ment might be imposed directly as a means of punishment.*
And it may be made .at the rate of one day for each two
dollars fine,^ although the authorized mode is at the rate
of a day for each dollar.® Where the fine and the imprison-



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 36 of 77)