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

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facts only, leaving the Judgment to the court It must present
the conclusions of fact as established by the evidence, and not
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.

Special verdict, how rendered.

1153. 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 they are dis-

Form of special verdict.

1154. The special verdict need not be in any particular form,
but is sufficient if it present intelligibly the facts found by the

Judgment on special verdict.

1155. The court must give Judgment upon the special verdict
as follows:

1. If the plea is not guilty, and the facts prove the defendant
guilty of the offense charged in the indictment, or of any other
offense of which he could be convicted under that indictment.
Judgment must be given accordingly. But if otherwise.
Judgment of acquittal must be given.

2. If the plea is a former conviction or acquittal of the same
offense, the court must give Judgment of acquittal or con-
viction, as the facts prove or fail to prove the former conviction
or acquittal.

93 Cal. 668.

When special verdict defective, new trial to be ordered.

1156. If the Jury do not, in a special verdict, pronounce
affirmatively or negatively on the facts necessary to enable the
court to give Judgment, or if they find the evidence of facts
merely, and not the conclusions of fact, from the evidence, as
established to their satisfaction, the court must order a new

Jury to find degree of crime.

1157. 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.

49 Cal. 179; 52 Cal. 454; 53 Cal. 627; 69 Cal. 384;
•0 Cal. 110; 65 Cal. 638; 67 Cal. Sol; 68 Cal. 180;
73 Cal. 581: 81 Cal. 618; 94 Cal. 386.

Jury may find upon charge of previous conviction.

1158. Whenever the fact of a previous conviction of another
offense is charged in an indictment or information, the Jury, if

CRIME8 - 44

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1169-1163 PENAL CODE. 690

<hey find a verdict of guilty of the offense with which he la
^charged, must also, unless the answer of the defendant admits
tthe charge, find whether or not he has suffered such previous
conviction. The verdict of the jury upon a charge of pre-
vious conviction may be: **We find the charge of previous con-
Tiction true," or, "We find the charge of previous conviction not
true," as they find that the defendant has or has not suffered
JBUCh conviction. [Amendment approved April 9. 1880; amend-
4ttettt8 1880. 24. In effect April 9, 1880.]

4» Cal. 396; 67 Cal. 660; 67 CaJ. 572; M Cal. 156;
64 Cal. S40: 64 Cal. 403; 66 Cal. 297; 73 Cal. 446;
73 Cal. 649; 109 Cal. 297; 110 Cal. 42; US Cal.


Jury may convict of lesser offense, or of attempt.

1159. The jury may find the defendant guilty of any offense,
the commission of which is necessarily included in that with
which he is charged, or of an attempt to commit the offense.
[Amendment approved April 9. 1880; amendments 1880. 24. In
effect April 9th. 1880.1

63 Cal. 69; 66 Cal. 80; 69 Cal. 364; 65 Cal 476;
76 Cal. 68; 91 Cal. 272; 93 Cal. 659; 99 Cal. 229;
100 Cal. 168; 105 Cal. 672; 115 Cal. 306.

Verdict as to sonle defendants, new trial as to others.

1160. On^an Indictment or information against several, if the
jury cannot agree upon a verdict as to all. they may render a
verdict as to those in regard to whom they do agree, on which &
judgment must be entered accordingly, and the case as to the
others may be tried by another jury. [Amendment approved
April 9, 1880; amendments 1880, 25. In effect April 9. 1880.]

67 Cal. 413.

Court may direct a reconsideration of the verdict.

1161. 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 reconsideration,
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 understood that the intent of the Jury la
either to render a general verdict or to find the facts specially
and to leave the judgment to the court.

48 Cal. 568; 68 Cal. 180; 118 Cal. 448.

When Judgment may be given on informal verdict.

1162. If the jury persist in finding an informal verdict, from
which, however, it can be clearly understood that their intention
Is to find in favor of the defendant upon the issue. It must be
entered in the terms in which it is found, and the court must
give judgment of acquittal. But no judgment of conviction can
be given unless the jury expressly find against the defendant
upon the issue, or judgment is given against him on a special

68 Cal. 180.

Polling the Jury.

1163. When a verdict is rendered, and before it Is recorded,
the jury may be polled at the request of either party. In which

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691 THE VERDICT. 1164-1167

case they must be severally asked whether it Is their verdict,
and if any one answer in the negative, the jury must be sent out
for further deliberation.

57 Cal. 100: O Cal. 620.

Recording the verdict.

1164. 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 dis-
agreement is expressed, the verdict is complete, and the jury
must be discharged from the case.

67 Cal. lOO.

Defendant, when to be discliarged.

1165. If judgment of acquittal is given on a general verdict,
and the defendant is not detained for any other legal cause,
he must be discharged as soon as the judgment is given, except
where the acquittal is because of a variance between the pleading
and proof, which may be obviated by a new indictment or
Information, the court may order his detention^ to the end that a
new indictment or information may be prefin;re^ in the same
manner and with like effect as provided in secTio^|5ft« thousand
one hundred and seventeen. [Amendment appro^qjM^ril 9,
1880; amendments 1880, p. 25. In effect April 9, lSS(r,ff/j.

81 Cal. 140; 64 Cal. 268; 70 Cal. 86; 79 Cal. 17f; <V/^

91 Cal. 643; 118 Cal. 27. V/^

Proceedings upon conviction or special verdict. O^

1166. If a general verdict is rendered against the defendant,
or a special verdict is given, he must be remanded, if In custody,
or if on bail he may be committed to the proper oflQcer of the
county to await the judgment of the court upon the verdict.
When committed his bail is exonerated, or if money Is deposited
Instead of bail it must be refunded to the defendant.

68 Cal. 182.

Proceedings on acquittal on ground of insanity.

1167. If the jury render a verdict of acquittal on the ground
of insanity, the court may order a jury to be summoned from
the jury list of the county, to inquire whether the defendant
continues to be insane. The court may cause the same wit-
nesses to be summoned who testified on the trial, and other wit-
nesses, and direct the district attorney to conduct the proceed-
ings, and counsel may appear for the defendant. The court may
direct the sheriff to take the defendant and retain him In
custody until the question of continuing insanity is determined.
If the jury find the defendant insane, he shall be committed by
the sheriff to the state insane asylum. If the jury find the
defendant sane, he shall be discharged. [Amendment approved
March 30, 1874; amendments 1873-4, p. 446. In effect July 1,


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1170-1 172 PENAL CODE. 692


Sec. 1170. In what cases.

1171. When to be settled and signed.

1172. Exceptions to decision of conrt by either party.

1173. Exceptions to decision of the court by the defendant.

1174. Exceptions, how settled.

1175. What bill of exceptions is to contain.

1176. Written charges need not be excepted to.

In what cases.

1170. On the trial of an indictment or information, exception!
may be taken by ttie defendant to a decision of the court:

1. In disallowing a challenge to the panel of the jury, or to
an individual juror for implied or actual bias;

2. In admitting or rejecting testimony on the trial of a chal-
lenge to a juror for actual bias;

3. In admitting or rejecting testimony, or in deciding any
question of law not a matter of discretion, or in charging or
instructing the jury upon the law on the trial of the issue. [In
effect February 28, 1901; stats, p. 81.]

61 Cal. 470; 61 Cal. 496; 63 Cal. 184: 63 Cal.
603: 66 Cal. 535; 59 Cal. 355; 61 Cal. 649; 70
Cal. 11; 83 Cal. 381; 87 Cal. 120; 96 Cal. 158;
U5 Cal. 167; 123 Cal, 488; 124 Cal. 553; 132
Cal. 142.

When to be settled and signed.

1171. When a party desires to have the exceptions taken
at the trial settled in a bill of exceptions, the draft of a bill
must be prepared by him and presented, upon notice of at least
two days to the district attorney, to the judge for settlement
within ten days after judgment has been rendered against him,
unless further time is granted by the judge, or by a Justice of
the Supreme Court, or within that period the draft must be
delivered to the clerk of the court for the judge. When received
by the clerk, he must deliver it to the judge, or transmit it to
him at the earliest period practicable. When settled, the bill
must be signed by the judge and filed with the clerk of tbs
court. [Amendment approved February 18, 1881; stats. 1881.
p. 6.1

51 Cal. 470; 68 Cal. 184; 53 Cal. 423; 6S Cal. 71;
76 Cal. 614; 77 Cal. 366; 78 Cal. 406; 86 Cal. 157;
94 Cal. 506; 106 Cal. 645; 115 Cal. 167; 122 Cal.

Exceptions to decision of court by either party.

1172. Exceptions may be taken by either party to the decision
of a court or judge upon a matter of law:

1. In granting or refusing a motion to set aside an Indict-
ment or information;

2. In allowing or disallowing a demurrer to an indictment or

3. In granting or refusing a motion in arrest of judgment;

4. In granting or refusing a motion for a new trial;

5. In making, or refusing to make, an order after judgment
affecting any substantial right of the parties. [Amendment
approved March 10, 1885; stats. 1885. p. 58.]

65 cal. 74; 56 Cal. 53?; 66 Cal. 175; 107 Cal.
478; 116 Cal. 161; 121 Cal. 495; 132 Cal. 142.

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693 BILLS OP EXCEPTION. 1178-1176

Exceptions to decision of the court by tlie defendant.

1173. Exceptions may be taken by the defenaant to a decision
of the court upon a matter of law:

1. In refusing to grant a motion for a change of the place
of trial;

2. In refusing to postpone the trial on motion of the defend-

55 Cal. 74; 66 Cal. 5S6: 66 Cat. 176; 116 Cal.
167; 1S2 Cal. 142.

Exceptions, how settled.

1174. Where a party desires to have the exceptions mentioned
in the last two sections settled in a bill of exceptions, the draft
of a bill must be prepared by him and presentea, upon notice of
at least two days to the adverse party, to the judge, for settle-
ment, within ten days after the order or ruling complained of is
made, unless further time is granted by the judge, or by a
justice of the Supreme Court, or within that period the draft
must be delivered to the clerk of the court for the judge. When
received by the clerk, he must deliver it to the judge, or transmit
It to him at the earliest period practicable. When settled, the
bill must be signed by the judge, and filed with the clerk of the
court. If the judge in any case refuses to allow an exception in
accordance with the facts, the party desiring the bill settled
may apply by petition to the Supreme Court to prove the same.
The application may be made in the mode and manner and
under such regulations as that court may prescribe; and the bill,
when proven, must be certified by the chief justice a& correct,
and filed with the clerk of the court in which the action was
tried, and when so filed it has the same force and effect as If
settled by the judge who tried the cause. If the judge who
presided at the trial ceases to hold office before ine bill is
tendered or settled, he may, nevertheless, settle such bill, or the
party may, as provided in this section, apply to the Supreme
Court to prove the same. [Amendment approved March 30,
1874; amendments 1873-4, p. 448. In effect July 1, 1874.]

51 Cal. 321; 53 Cal. 1S4; 55 Cal. 74; 56 Cal.
119; 73 Cal. 2; 74 Cal. 190; 76 Cal. 284; 77 Cal.
356; 78 Cal. 346; lf>8 Cal. 32; 119 Cal. 57; 121 Cai.
281; 121 Cal. 496.

What bill of exceptions is to contain.

1175. A bill of exceptions must contain so much of the
evidence only as is necessary to present the questions of law
upon which the exceptions were taken; and the judge must, upon
the settlement of the bill, whether agreed to by the parties or
not, strike out all other matters contained therein.

51 Cal. 321; 52 Cal. 212; 76 Cal. 285; 76 Cal. 35l;:aC; I V 1'
80 Cal. 157; 80 Cal. 4S8; 121 Cal. 281.

Written charges need not be excepted to.

1176. When written charges have been presented, given, or
refused, or when the charges have been taken down by the
reporter, the questions presented in such charges need not be
excepted to or embodied in a bill of exceptions, but the written
charges or the report, with the indorsements showing the action
of the court, form part of the record, and any error in the
decision of the court thereon may be taken advantage of on
appeal, in like manner as if presented in a bill of exceptions.

77 Cal. L*?0: 84 Cal. bSl; 106 Cal. 36; 111 Cal.
259; 115 Cal. 161; 118 Cal. 329; 127 Cal. 547.

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1179-1182 PBNALCODB, 694


Sec. 1179. New tritl defined.

1180. Its effect.

1181. In what cases It may be granted.

1182. Application for, when made.

New trial defined.

1179. A new trial is a re-examination of the issue in ths
same court, before another jury, after a yerdict has been given.

72 Cal. 15.

Its effect.

1180. The granting of a new trial places the parties in ths
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
indictment. [Amendment approved March 30, 1874; amendments
1873-4, p. 449. In effect July 1. 1874.1

99 Cal. 233.

In what cases it may be granted.

1181. When a verdict has been rendered against the defend-
ant, the court 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 indict-
ment is for a felony;

2. When the jury has received any evidence out of court other
than that resulting from a view of the premises;

3. When the Jury has separated without leave of the court*
after retiring to deliberate upon their verdict, or 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
means other 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;

6. When the verdict is contrary to law or evidence;

7. When new evidence is discovered material to the defend-
ant, and which he could not, with reasonable diligence, have
discovered and produced at the trial. When a motion for a new
trial is made upon the ground of newly-discovered evidence,
the defendant must produce at the hearing, in support thereof , the
aflQavlts of the witnesses 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.

53 Cal. 184: M Cal. 118; TO Cal. 472; 71 Cal.
39S: 74 Cal. 4S3: 76 Cal. 575; 78 Cal. 884: 88
Cal. 490; 91 Cal. 199; 102 Cal. 832; 115 Cal. 804;
U9 Cal. 2; 122 Cal. 183; 12S Cal. 607; 129 Cal.

Application for, when made.

1182. The application for a new trial must be made before

80 Cal. 488; 98 Cal. 365.

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696 ARREST OF JUDGMENT. 1185-1188


Sec. 1185. Motion in arrest of Judgment.

1186. Court may arrest judgment without motion.

1187. Effect of arresting Judgment.

1188. Defendant, when to be held or discharged.

Motion in arrest of Judgment.

1185. A motion In arrest of Judgment Is an application on the
part of the defendant that no Judgment be rendered on a plea
or verdict of guilty, or on a verdict against the defendant, on a
plea of a former conviction or acquittal. It may be founded on
any of the defects in the indictment or information mentioned in
section one thousand and four, unless the objection has been
waived by a failure to demur, and it must be made before or
at the time the defendant is called for Judgment. [Amendment
approved April 9, 1880; amendments 1880, p. 25. In effect April
9, 1880.]

48 Cal. 2S2; 49 Cal. 290; 56 Cal. 635; 58 Cal. 226;
71 Cal. 889: 77 Cal. 33; 82 Cal. 621; 91 Cal. 199;
98 Cal. 128; 103 Cal. 428; 103 Cal. 677; 122 Cal.
143; 127 Cal. 549; 131 Cal. 260.

Court may arrest Judgment witliout motion.

1186. The court may also, on its own view of any of these
defects, arrest the Judgment without motion.

132 Cal. 16.

Effect of arresting Judgment.

1187. The effect of allowing a motion in arrest of judgment is
to place the defendant in the same situation in which he was
before the indictment was found or information filed. [Amend-
ment approved April 9, 1880; amendments 1880, p. 25. In
effect April 9. 1880.J

73 Cal. 406; 74 Cal. 98.

Defendant, wlien to be lield or discliarged.

1188. If, from the evidence on the trial, there is reason co
believe the defendant guilty, and a new indictment or information
can be framed upon which he may be convicted, the court may
order him to be recommitted to the oflQcer of the proper county,
or admitted to bail anew, to answer the new indictment or
information. If the evidence shows him guilty of another
offense, he must be committed or held thereon, and in neither
case shall the verdict be a bar to another prosecution. But if
no evidence appears sufficient to charge him with any offense,
he must, if in custody, be discharged; or if admitted to bail, his
bail is exonerated; or if money has been deposited instead of
bail, it must be refunded to the defendant; and the arrest of
Judgment shall operate as an acquittal of the charge upon which
the indictment or information was founded. [Amendment ap-
proved April 9, 1880; amendments 1880, p. 25. In ffect April 9^

64 Cal. 263; 74 Cal. 98; 109 Cal. 296.

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1191-1195 PENAL CODE. 696

Chapter I. The judgment, sections 1191-1207.
II. The execution, sections 1213-1230.


Sec. 1191. AppolntiDg time for Jndfrmeut.

1192. Upon plea of ^Ilty, court must determine degree.

1193. Presence of defendant.

1194. Defendant In custody, how brought for judgment.

1195. How brotfght before the court when on ball.

1196. Bench-warrant to Issue.

1197. Form of bench-warrant.

1198. Warrant, how served.

1199. Arrest of defendant.

1200. Arraignment of defendant for judgment.

1201. What cause may be shown against the judgment.
. 1202. If no cause shown, judgment to be pronounced.

1203. Circumstances in aggravation or mitigation of punishment.

12(J4. Proof of former eouvletlon, etc., in mitigation, how made.

1205. Duration of Imprisonment on judgment to pay a fine.

1206. Judgment to pay a tine eonstitutes a lien.

1207. Entry of judgment and judgment roll.

Appointing time for Judgment.

1191. After a plea or verdict of guilty, or after a verdict
against the defendant on the plea of a former conviction or
acquittal. If the judgment be not arrested or a new trial granted,
the court must appoint a time for pronouncing judgment, which,
in cases of felony, must be at least two days after the verdict,
tf the court intend to remain in session so long; but if not,
then, at as remote a time as can reasonably be allowed.
[Amendment approved March 30, 1874; amendments 1873-4. p.
449. In effect July 1. 1874.1

46 Cal. 96: 65 Cal. 174; 79 Cal. 632: 8S Cal. 174;
88 Cal. 177.

Upon plea of guilty, court must determine degree.

1192. Upon a plea of guilty of a crime distinguished or
divided into degrees, the court must, before passing sentence,
determine the degree.

49 Cal. 17S; C2 Cal. 453; 67 Cal. 114; 73 Cal.

Presence of defendant.

1193. For the purpose of judgment, if the conviction is for
felony, the defendant must be personally present; if for a mis-
demeanor, judgment may be pronounced in his absence.

68 Cal. 180; 79 Cal. 632.

Defendant in custody, how brought for Judgment.

1194. When the defendant is in custody, the court may direct
the officer in whose custody he is to bring him before It for
judgment, and the officer must do so.

How brought before the court when on bail.

1195. If the defendant has been discharged on bail, or has
deposited money instead thereof, and dors not appear for judg-
ment wi.en his personal appearance is necessary, the court. In

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<J97 THE JUDGMENT. 1196-1201

addition to the forfeiture of the undertaking of bail, or of the
money deposited, may direct the clerk to issue a bench warrant
foT his arrest.

68 Cal. 180.

Bench warrant to issue.

1196. The clerk, on the application of the district attorney,
may, at any time after the order, whether the court be sitting
or not, issue a bench warrant into one or more counties.

Form of bench warrant.

1197. The bench warrant must be substantially in the fol-
lowing form: County of . The people of the state of

California, to any sheriff, constable, marshal, or policeman in
this state: A B, having been on the — day of , A. D.

■eighteen hundred and , duly convicted in the Superior

Court of the county of , of the crime of [designating

it generally], you are therefore commanded forthwith to arrest
the above named A B, and bring him before that court for
judgment. Given under my hand, with the seal of said court

aflaxed, this — day of , A. D. eighteen hundred and .

By order of the court. [Seal.] E P, clerk. [Amendment
approved April 12, 1880; stats. 1880, p. 34. In effect April 12,

• 68 Cal. 180.

Warrant, how served.

1198. The bench warrant may be served in any county in
the same manner as a warrant of arrest, except that when served
in another county it need not be indorsed by a magistrate of
that county.

Arrest of defendant.

1199. Whether the bench warrant is served in the county in
which it was issued or in another county, the ofticer must arrest
the defendant and bring him before the court or commit him
to the officer mentioned in the warrant, according to the com-
mand thereof.

Arraignment of defendant for judgment.

1200. When the defendant appears for judgment he must be
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 must be asked whether he has any
legal cause to show why judgment should not be pronounced
against him. [Amendment approved April 9, 1880; amendments
1880, p. 26. In effect April 9, 1880.]

64 Cal. 372: 70 Cal. 471; 87 Cal. 123; 88 Cal. 120;
88 Cal. U2; 8S Cal. 175; 88 Cal. 178; 102 Cal.
231; 114 Cal 355; 118 Cal. 390; 132 Cal. 140.

What cause may be shown against the Judgment.

1201. He may show, for cause against the judgment:

1. That he is insane; and if, in the opinion oi the court, there
is reasonable ground for believing him to be insane, the question
of insanity must be tried as provided in chapter VI, title X,
part II of this code. If, upon the trial of that question, the
jury find that he is sane, judgment must be pronounced, but if

Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 63 of 77)