California Charles Howard Fairall.

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

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the trial to be postponed to another day. [Amendment approved
April 9, 1880; amendments 1880, p. 20. In effect April 9, 1880.]

66 Cal. 396; 76 Cal. 842; 180 Cal. 76.



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1065-1057 PBWAL CODE. 672

TITLE VII.

OF PROCEEDINGS AFTER THE COMMENCEMENT OF TIM
TRIAL AND BEFORE JUDGMENT.

Chapter I. Challenging the Jury, sections 1055-88.
II. The trial, sections 1093-1131.

III. Conduct of the jury alter cause is submitted to

them, sections 1135-43.

IV. The verdict, sections 1147-67.

V. Bills of exception, sections 1170-6.
VI. New trial, sections 1179-82.
VII. Arrest of judgment, sections 1186-8.



CHAPTER I.
CHALLENGING THE JURY.

Sec. 1055. Definition and dlyislon of challenges.

1056. Defendants cannot sever in challenges.

1057. Panel defined.

1058. Challenge to the Jury defined.

1059. Upon what founded.

1060. Wlien and how taken.

1061. Exception, if sufllclency be denied.

1062. If exception overruled, court may allow denial, etc.

1063. Denial of challenge, how made, and trial thereof.
1064^. Challenge for bias in summoning officer.

1065. Proceedings, if challenge allowed.

1066. Defendant to be informed of his right to challenge.

1067. Kinds of challenges to individual juror.
106S. Challenge, when taken.

1069. Peremptory challenge, what, and how taken.

1070. Number of peremptory challenges.

1071. Definition and kinds of challenge, for cause.

1072. General causes of challenge.

1073. Particular cause of challenge.

1074. Ground of challenge for Implied bias.

1075. Exemption not a ground of challenge.
107«. Causes of challenge, how stated.

1077. Exceptions to challenge an4 denial thereof.

1078. Challenge, how tried.

1081. Juror challenged may be examined as a witness.

1082. Rules of evidence on trial of challenge.

1083. Decision of court to be entered.

1086. Challenges, first by the defendant.

1087. Order of challenges.

1088. Peremptory challenges, when may be taken.

1089. Alternate jurors.

Definition and divteion of challenges.

1055. A challenge is an objection made to the trial Jupori,
and is of two kinds:

1. To the panel;

2. To an individual juror.

Defendants cannot sever in challenges.

1056. When several defendants are tried together they can-
not sever their challenges, but must join therein*

Panel defined.

1057. The panel is a list of jurors returned by a sheriff, to
serve at a particular court or for the trial of a particular
action.



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673 CHALLENGING THE JURY. 1058-1066

Challenge to the Jury defined.

1058. A challenge to the panel is an objection made to all
the Jurors returned, and may be taken by either party.

Upon what foiinded.

1069. A challenge to the panel can be founded only on a
material departure from the forms prescribed in respect to the
drawing and return of the Jury in civil actions, or on the inten-
tional omission of the sheriff to summon one or more of th«
Jurors drawn.

64 C9l. 382; 79 Cal. 360; 97 Cal. 176.

When and how taken.

1060. A challenge to the panel must be taken before a Juror
is sworn, and must be in writing or be noted by the phono-
graphic reporter, and must plainly and distinctly state the facts
constituting the ground of challenge.

127 Cal. 330.

Exception, if sufficiency of the challenge be denied.

1061. If the sufficiency of the facts alleged as ground of the
challenge is denied, the adverse party may except to the chal-
lenge. The exception need not be in writing, but must be
entered on the minutes of the court, or of tae phonographic
reporter, and thereupon the court must proceed to try the suffi-
ciency of the challenge, assuming the facts alleged therein to
be true.

ftl Cal. 54».
If exception overruled, court may allow denial, etc.

1062. If, on the exception, the court finds tha challenge suffi-
cient, it may, if Justice requires it, permit the party excepting
to withdraw his exception, and to deny the facts alleged in the
challenge. If the exception is allowed, the court may, in like
manner, permit an amendment of the challenge.

61 Cal. 549.

Denial of challenge, how made, and trial thereof,

1063. If the challenge is denied, the denial may be oral, and
must be entered on the minutes of the court, or of the phono-
graphic reporter, and the court must proceed to try the question
of fact; and upon such trial, the officers, whether judicial or
ministerial, whose irregularity is complained of, as well as any
other persons, may be examined to prove or disprove the facts
alleged as the ground of the challenge.

Challenge for bias in summoning officer.

1064. When the panel is formed from persons whose names
are not drawn as Jurors, a challenge may be taken to the panel
on account of any bias of the officer who summoned them, which
would be good ground of challenge to a Juror. Such challenge
must be made in the same form, and determined in the same
manner, as if made to a Juror.

49 Cal. 177; 76 Cal. 846: 95 Cal. 427; 101 Cal.
283; 106 Cal. 583; 116 Cal. 195; 122 Cal. 236;
127 Cal. 380.

Proceedings, if challenge allowed.

1065. If, either upon an exception to the challenge or a denial
of the facts, the challenge is allowed, the court must discharge
the Jury so far as the trial in question is concerned. If it is
disallowed, the court must direct the Jury to be impaneled.



CRIMC8 - 43



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1066-1073 PENAL CODE. 674

[Amendment approved April 9, 1880; amendments 1880, p. 20.
In effect April 9, 1880.]

73 Cal. 360.

'Defendant to be informed of his riglit to challenge.

1066. Before a juror is called, the defendant must be informed
by the court, or under its direction, that if he intends to chal-
lenge an individual Juror he must do so when the Juror appears,
and before he is sworn.

58 Cal. 266; 76 Cal. 346; 88 Cal. 418; 93 Cal.
596; 102 Cal. 231; IDS Cal. UO.

Kinds of challenges to individual Juror.

1067. A challenge to an individual Juror is either:

1. Peremptory; or,

2. For cause.

Challenge, when taken.

1068. It must be taken when the Juror appears, and before
he is sworn to try the cause; but the court may for cause permit
it to be taken after the Juror is sworn, and before the Jury is
completed.

47 Cal. 122; 53 Cal. 577; 76 Cal. 847; 87 Cal. 1»;
lOGl Cal. 338; U6 Cal. 197; 128 Cal. 488.

Peremptory challenge, what, and how taken.

1069. A peremptory challenge can be taken by either party,
and may be oral. It is an objection to a Juror for which no
reason need be given, but upon which the court must exclude
him.

Number of peremptory challenges.

1070. If the offense charged be punishable with death, or
with imprisonment in the state prison for life, the defendant is
entitled to twenty and the state to ten peromptory challenges.
On a trial for any other offense, the defendant is entitled to ten
and the state to five peremptory challenges. [Amendment ap-
proved March 30, 1874; amendments 1873-4. p. 441. In effect
July 1, 1874.]

69 Cal. 441: 61 Cal. 137; 61 Cal. 486; lOf OaL
259; 132 Cal. 94.

Definition and kinds of challenge, for cause.

1071. A challenge for cause may be taken by either party.
It is an objection to a particular juror, and is either:

1. General— that the Juror is disqualified from serving In any
case; or,

2. Particular— that he is disqualified from serving in ths
action on trial.

70 Cal. 11.

General causes of challenge.

1072. General causes of challenge are:

1. A conviction for felony;

2. A want of any of the qualifications p«*e8cribed by law
to render a person a competent juror;

3. Unsoundness of mind, or such defect in the faculties of
the mind or organs of the body as renders him incapable of
performing the duties of a Juror.

61 Cal. 553; 119 Cal. 621; 123 Cal. 487. '<SS

Particular cause of challenge.

1073. Particular causes of challenge are of two kinds:
First — For such a bias as, when the existence of the facts is



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675 CHALLENGING THB JURY. 1074-1076

ascertained, in judgment of law disqualifies the juror, and which
is known in this Code as implied bias.

Second — ^For the existence of a state of mind on the part of the
juror in reference to the case, or to either of the parties, which
will prevent him from acting with entire impartiality and with-
out prejudice to the substantial rights of either party, which is
known in this code as actual bias. [Amendment approved
March 30, 1874; amendments 1873-4, p. 441. In effect July 1,
1874.1

49 Cell. 168; 49 Cal. 177 ? 61 Cal. 663; 62 Cal. 879;

96 Cal. 127; 100 Cal. 229; U9 CaL 196; 123 Cal.

486.

Ground of challenge for Implied bias.

1074. A challenge for implied bias may be taken for all or
any of the following causes, and for no other:

1. Consanguinity or afllnity within the fourth degree to the
person alleged to be injured by the ofTense charged, or on whose
complaint the prosecution was Instituted, or to the defend-
ant.^

2. Standing in the relation of guardian ana ward, attorney
and client, master and servant, or landlord ana tenant, or being
a member of the family of the defendant, or of the person
alleged to be injured by the offense charged, or on whose com-
plaint the prosecution was Instituted, or in his employment on
wages.

3. Being a party adverse to the defendant in a civil action,
or having complained against or been accused by him in a
criminal prosecution.

4. Having served on the grand jury which found the Indict-
ment, or on a coroner's jury which inquired into the death of a
person whose death is the subject of the indictment or infor-
mation.

5. Having served on a trial jury which has tried another
person for the offense charged.

6. Having been one of a jury formerly sworn to try the same
charge, and whose verdict was set aside, or which was dis-
charged without a verdict, after the case was submitted to it.

7. Having served as a juror in a civil action brought against
the defendant for the act charged as an offense.

8. m the offense charged be punishable with death, the emter-
talnlfig of such conscientious opinions as would preclude his
finding the defendant guilty; In which case he must neither
be permitted nor compelled to serve as a juror. [Amendment
approved April 9, 1880; amendments 1880, p. 20. In effect April
9. 1880.]

49 Cal. 169; 49 Cal. 178; 59 Cal. 356; 61 Cal. 549;
62 Cal 380; 65 Cal. 148; 76 Cal. 346; 116 Cal.
509; 117 Cal. 666; 119 Cal. 621.

Exemption not a ground of challenge.

1075. An exemption from service on a jury is not a cause
of challenge, but the privilege of the person exempted.

128 Cal. 486.

Causes of challenge, how stated.

1076. In a challenge for implied bias, one or more of the
causes stated in section ten hundred and seventy-four must be
alleged. In a challenge for actual bias, the cause stated in the
second subdivision of section ten hundred and seventy-three



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1«77-1087 PEHAL CODE. 076

mnst be alleged; but no person shall be disqualified as a juror
by reason of having formed or expressed an opinion upon the
matter or cause to be submitted to such jury, founded upon
public rumor, statements in public journals, or common notor-
iety; provided it appear to the court, upon his declaration,
under oath or otherwise, that he can and will, notwithstanding
such an opinion, act impartially and fairly upon the matters
to be submitted to him. The challenge may be oral, but must
be entered in the minutes of the court or of the phonographic
reporter. [Amendment approved March 30, 1874; amendments
1873-4, p. 443. In effect July 1, 1874.]

59 Cal. 354; 61 Cal. 549; 100 Cal. 229; 105 Cal.
3(12: 108 Cal. 583; 124 Cal. 317; 125 Cal. 4«.

Exceptions to challenge and denial thereof.

1077. The adverse party may except to the challenge in the
same manner as to a challenge to the panel, and the same pro-
ceedings must be had thereon as are prescribed in section
1061, except that if the exception be allowed the juror must be
excluded. The adverse party may also orally deny the facts
allege as the ground of challenge.

61 Cal. 549.

Challenge, how tried.

1078. If the facts are denied, the challenge must be tried by
the court. [Amendment approved March 30, 1874; amendments
1873-4, p. 443. In effect July 1, 1874.]

Juror challenged may be examined as a witness.

1081. Upon the trial of a challenge to an individual juror,
the juror challenged may be examined as a witness to prove
or disprove the challenge, and must answer every question per-
tinent to the inquiry.

Rules of evidence on trial of challenge.

1082. Other witnesses may also be examined on either side,
and the rules of evidence applicable to the trial of other issues
govern the admission or exclusion of evidence on the trial of
the challenge.

Decision of court to be entered.

1083. The court must allow or disallow the challenge, and its
decision must be entered In the minutes of the court. [Amend-
ment approved March 30, 1874; amendments 1873-4, p. 443. In
effect July 1. 1874.]

Challenges, first by the defendant.

1086. All challenges to an individual juror, except peremptory,
must be taken, first by the defendant, and then by the people,
and each party must exhaust all his challenges before the other
begins.

Order of challenges.

1087. The challenges of either party for cause need not all be
taken at once, but they must be taken separately, in the fol-
lowing order, including In each challenge aU the causes of chal-
lenge belonging to the same class:

1. To the panel;

2. To an individual juror, for a general disqualification;

3. To an individual juror, for an implied bias;

4. To an Individual juror, for an actual bias.



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♦77 CHALLB»GING THE JURY. 1088-1089

Peremptory challenges, when may be taken.

1088. If all challenges on both sides are disallowed, either
party, first the people and then the defendant, may take a
peremptory challenge, unless the parties' peremptory challens^
are exhausted.

48 Cal. &59: 66 Cal. 148; 96 Cal. 318.

Alternate Jurors.

1089. Whenever, in the opinion of a judge of a Superior Court
about to try a defendant against whom has been filed any indict-
ment or information for a felony, the trial is likely to be a pro-
tracted one, the court may cause an entry to that effect to be
made in the minutes of the court, and thereupon, immediately
after the jury is impaneled and sworn, the court may direct the
calling of one or two additional jurors, in its discretion, to be
known as "alternate jurors." Such jurors must be drawn from
the same source, and in the same manner, and have the same
qualifications as the jurors already sworn, and be subject to
the same examination and challenges; provided, that the pros-
ecution shall be entitled to one, and the defendant to two, per-
emptory challenges to such alternate jurors. Such alternate
jurors shall be seated near, with equal power and facili-
ties for seeing and hearing the proceedings in the case,
and shall take the same oath as the jurors already selected,
and must attend at all times upon the trial of the
cause in company with the other jurors; and for a failure so
to do are liable to be punished for contempt. They shall obey
the orders of and be bound by the admonition of the court upon
each adjournment of the court; but if the regular jurors are
ordered to be kept in the custody of the sheriff during the trial
of the cause, such alternate jurors shall also be kept in con-
finement with the other jurors; and except, as hereinafter pro-
vided, shall be discharged upon the final submission of the case
to the jury. If, before the final submission of the case, a juror
die, or become ill, so as to be unable to perform his duty, the
court may order him to be discharged and draw the name of an
alternate, who shall then take his place in the jury-box, and be
subject to the same rules and regulations as though he had been
selected as one of the original jurors. [New section approved
March 28, 1895; stats. 1895, p. 279. In effect March 28, 1895.)



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1093 PBNAL CODE. 678

CHAPTER n.
THE TRIAL.

Sec. 10»3. Order of trial.

1094. When order of trial may be departed from.

1095. Number of counsel who may ar^ue the case.

1096. Defendant presumed innocent. Reasonable doubt.

1097. Reasonable doubt as to degree convicts only of lowest,

1098. Separate trials.

1099. Discharging defendant that he may be a witness.

1100. Same.

1101. Effect of such discharge.

1102. Rules of evidence in civil applicable to criminal cases.

1103. Evidence on trial for treason.

1104. Evidence on trial for conspiracy.

1105. When burden ot proof shifts In trials for murder.

1106. Evidence on a trial for bigamy.

1107. Evidence upon a trial for forging bank bills, etc.

1108. Evidence upon trial for abortion and seduction.

1109. Evidence on trial for selling, etc., lottery tickets.

1110. Evidence of false pretenses.

1111. Conviction on testimony of accomplice.

1113. Discharge Jury for lack of jurisdiction, etc.

1114. Proceedings, If jury discharged for want of jurisdiction of

offense committed out of the state.

1115. Proceedings In such case, when offense committed In tht

state.

1116. Same.

1117. Proceedings, if jury discharged because the facts do not

constitute an offense.

1118. When evidence on either side is closed, court may advise

jury to acquit.

1119. View of prpmisos, when ordered, and how conducted.

1120. Knowledge of juror to be declared In court, and he to be

sworn as a witness.

1121. Jurors, separation of, during trial.

1122. Jur>', at each adjournment, must be admonished, etc.

1123. Juror unable to perform his duties, proceedings.

1124. Court to decide questlonc of law arising during trial.

1125. On indictment for libel, jury to determine law and fact.

1126. In all other cases court to decide questions of law.

1127. Charging the jury.

1128. Jury may decide In court, or retire In custody of officers.

1129. Defendant appearing for trial may be committed.

1130. If district attorney fails to attend, court may appoint.

1131. Allegations of larceny or embezzlement, when sustained.

Order of trial.

1093. The jury having been impaneled and sworn, the trial
must proceed in the following order, unless otherwise directed
by the court:

1. If the Indictment or information be for felony, the clerk
must read it, and state the plea of the defendant to the jury,
and in cases where it charges a previous conviction, and the
defendant has confessed the same, the clerk in reading it shall
omit therefrom all that relates to such previous conviction. In
all other cases this formality may be dispensed with.

2. The district attorney, or other* counsel for the people,
must open the cause and offer the evidence in. support of the
charge.

3. The defendant or his counsel may then open the defense,
and offer his evidence in support thereof.

4. The parties may then respectively offer rebutting tes-
timony only, unless the court, for good reason, in furtherance
of Justice, permit them to offer evidence upon their original
case.

5. When the evidence is concluded, unless the case is sub-
mitted to the jury on either side, or on both sides, without



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679 THK TKIAL. 1094-1099

argument, the district attorney, or other counsel for the people^
and counsel for the defendant, may argue the case to the court
and jury; the district attorney, or other counsel for the people,
opening the argument and having the right to close.

6. The judge may then charge the Jury, and must do so on
any points pertinent to the issue, if requested by either party;
and he may state the testimony and declare the law. If the
charge be not given in writing, it must be taken down by the
phonographic reporter. [Amendment approved April 9, 1880;
amendments 1880, p. 21. In effect April 9, 1880.]

46 Cal. 662; 46 Cal. 117; 46 Cal. 303; 53 Cal. 494;
53 Cal. 575; 65 Cal. 298; 57 Cal. 99; 57 Cal. 817;

57 Cal. 560; 58 Cal. 269; 66 Cal. 127; 6& Cal.
297: 66 Cal. 456; 1% Cal. 447; 73 Cal. 517; 73
Cal. 549; 76 Cal. 69; 76 Cal. 282; 76 Cal. 848;

84 Cal. 450; 85 Cal 570; 88 Cal. 117; 88 Cal.
141; 88 Cal. 175; 88 Cal. 177; 103 Cal. 571; 106
Cal. 502; 110 Cal. 42; 116 Cal. 686; 118 al. 390.
118 Cal. 329; 131 Cal. 653.

When order of trial may be departed from.

1094. When the state of the pleadings requires it, or in any
other case, for good reasons, and in the sound discretion of the
court, the order prescribed in the last section may be departed
from.

85 Cal. 570; 103 Cal. 571.

Number of counsel who may argue the case.

1095. If the indictment or information be for an offense
punishable with death, two counsel on each side may argue the
cause to the jury. If it be for any other offense, the court may,
in its discretion, restrict the argument to one counsel on each
side. [Amendment approved April 9, 1880; amendments 1880, p.
21. In effect April 9. 1880.]

48 Cal. 238; 53 Cal. 667; 55 Cal. 298; 65 Cal. 127;

76 Cal. 348; 123 Cal. 69. %

Defendant presumed innocent. Reasonable doubt.

1096. A defendant in a criminal action is presumed to be
innocent until the contrary is proved, and in case of a reason-
able doubt whether his guilt is satisfactorily shown, he is
entitled to an acquittal.

58 Cal. 268; 71 Cal. 8; 84 Cal. 33; 84 Cal. 456;
122 Cal. 141,

Reasonable doubt as to degree convicts only of loweat.

1097. When it appears that the defendant has committed
a public offense, and there is reasonable ground of doubt in
which of two or more degrees he is guilty, he can be convicted
of the lowest of such degrees only.

58 Cal. 268; 68 Cal. 180; 71 Cal. 8; 118 Cal. 270.

Separate trials.

1098. When two or more defendant are jointly charged with a.
felony, any defendant requiring it m^ist be tried separately. In
other cases the defendants jointly charged may be tried sepa-
rately or jointly In the discretion of the court. [Amendment
approved April 9, 1880; amendments 1880, p. 22. In effect April
9, 1880.]

121 Cal. 162.

Discharging defendant that he may be a witness.

1099. When two or more persons are included in the same
charge, the court may, at any time before the defendants have



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1 100-1 106 PENAL CODB. 680

gone into their defense, on the application of the district attor-
ney, direct any defendant to be discharged, that he may be a
witness for the people. [Amendment approved April 9, 1880;
amendments 1880, p. 22. In eftect April 9, 1880.]

4S CaL 268; 70 Cal. 66; 110 Cal. 611.

Same.

1100. When two or more persons are included in the same
indictment or information, and the court is of opinion that in
regard to a particular defendant there is not sufficient evidence
to put him on his defense, it must order him to be discharged
before the evidence is closed, that he may be a witness for his
codefendant. [Amendment approved April 9, 1880; amendments
1880, p. 22. In effect April 9, 1880.]

70 Cal. 55.

Effect of such discharge.

1101. The order mentioned in the last two sections is an
acquittal of the defendant discharged, and is a bar to another
prosecution for the same offense.

48 Cal. 25S: 70 Cal. 55.

Rules of evidence in civil cases applicable to criminal cases.

1102. The rules of evidence in civil actions are applicable
also to criminal actions, except as otherwise provided in this
code.

57 Cal. 568: &7 Cal. 673; 58 Cal. 214: W Cal. 2o»:
98 Cal. J31; 104 Cal. 487; 120 Cal. 666; 1» Cal.
563; 132 Cal. 201; 132 Cal. 263.

Evidence on trial for treason.

1103. Upon a trial for treason, the defendant cannot be con-
victed unless upon the testimony of two witnesses to the same
overt act, or upon confession in open court; nor can evidence
be admitted of an overt act not expressly charged in the indict-
ment or information; nor can, the defendant be convicted unless
one or more overt acts be expressly alleged therein. [Amend-
ment approved April 9, 1880; amendments 1880, p. 22. In effect
April 9, 1880.1

68 Cal. 180.

Evidence on trial for conspiracy.

1104. Upon a trial for conspiracy, in a case where an overt
act is necessary to constitute the offense, the defendant cannot
be convicted unless one or more overt acts are expressly
alleged in the indictment or information, nor unless one of the
acts alleged is proved; but other overt acts not alleged may be
given in evidence. [Amendment approved April 9, 1880; amend-
ments 1880, p. 22. In effect April 9, 1880.]

68 Cal. ISO.

When burden of proof shifts in trials for murder.

1105. Upon a trial for murder, the commission of the homi-



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