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

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they find him insane, he must be committed to the state lunatic
asylum until he becomes sane; and when notice is given of that
fact, as provided in section 1372, he must be brought before
the court for judgment;



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1202-1207 PENAL CODE. 698

2. That he has good cause to offer, either in arrest of Judg-
ment or for a new trial; in which case the court may, in its
discretion, order the judgment to be deferred, and proceed to
decide upon a motion in arrest of judgment or for a new trial.

62 Cal. 55; 68 Cal. 180; 7Q Cal. 471; U4 Cal. SSS;
122 Cal. 411.

If no cause shown, Judgment to be pronounced.

1202. If no sufficient cause is alleged or kppears to the court
why judgment should not oe pronounced, it must thereupon be
rendered.

70 Cal. 471; 133 Cal. 128.

Circumstances in aggravation or mitigation of punishment.

1203. After a plea or verdict of guilty, where a discretion !•
conferred upon the court as to the extent of the punishment, the
court, upon the oral suggestion of either party that there are
circumstances which may be properly taken into' view either In
aggrayation or mitigation of the punishment, may, in its dis-
cretion, hear the same summarily, at a specified time, and upon
duch notice to the adverse party as it may direct

122 Cat. 631.

Proof of former conviction, etc., in mitigation, how made.

1204. The circumstances must be presented by the testimony
of witnesses examined in open court, except that when a wit-
ness is so sick or infirm as to be unable to attend, his deposition
may be taken by a magistrate of the county, out of court, upon
such notice to the adverse party as the court may direct. No
affidavit or testimony, or representation of any kind, verbal or
written, can be offered to or received by the court, or^ a judge
thereof, in aggravation or mitigation of the punishment, except
as provided in this and the preceding section.

Duration of imprisonment on judgment to pay a fine.

1205. A Judgment that the defendant pay a fine may also
direct that he be imprisoned until the fine be satisfied. But the
judgment must specify the extent of the imprisonment, which
must not exceed one day for every two dollars of the fine, nor
extend in any case beyond the term for which the defendant
might be sentenced to imprisonment for the offense of which
he has been convicted. [Amendment approved March 10, 1891
stats. 1891, p. 52.]

54 Cal. 205; GO Cal. 435; 63 Cal. 300; 64 Cal. 438;
66 Cal. 186; 73 Cal. 495; 82 Cal. 274; 82 Cal. 612;
83 Cal. 889; 84 Cal. 166; 85 Cal. 38; 88 Cal. 680;
94 Cal. 333; 97 Cal. 528; 113 Cal. 37.

Judgment to pay a fine constitutes a lien.

1206. A judgment that the defendant pay a fine constitutes
a lien, in like manner as a judgment for money rendered in a
civil action.

113 Cal. 37; 129 Cal. 548.

Entry of Judgment and Judgment roll.

1207. When judgment upon a conviction is rendered, the
clerk must enter the samo in the minutes, stating briefly the
offense for which the conviction was had, and the fact of a prior
conviction (\t one), and must, within five days, annex together
and file the following papers, which will constitute a record of
the action:



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699 THE JUDGMENT — EXECUTION. 1213-1216

1. The indictment or information, and a copy of the minutes
of the plea or demurrer.

2. A copy of the minutes of the trial.

3. The charges given or refused, and the indorsements
thereon. And,

4. A copy of the Judgment. [Amendment approved April 9,
1880; amendments 1880, p. 26. In effect April 9, 1880.]

52 Cal. 480; 6t Cal. 666; 58 Cal. 352; 69 Cal. 661;
65 Cal. 234; 66 Cal. 298; 71 Cal. 887; 73 Cal. 442;
77 Cal. ISQ; 78 Cal. 2; 88 Cal. 120; 88 Cal. 140;
88 Cal. 175; S8 Cal. 487; 103 Cal. 610; 114 Cal.
864; 118 Cal. 329; 120 Cal. 278; 121 Cal. 494:
127 Cal. 647; 1«8 Cal. 128.






CHAPTER II.
THE EXECUTION.

Sec. 1213. Execution of a Judgment other than of death

1214. If for fine alone, execution to Issue as In civil cases.

1215. Judgment of fine and imprisonment, how oxc
121(5. Judgment of imprisonment. Duty of sheriff.

1217. Execution upon Judgment of death.

1218. Transmission of conviction and testimony to governor.

1219. Governor may require opinion of supreme court thereon.

1220. Judgment of death, when suspended.

1221. Insanity of defendant, how determined.

1222. Duty of district nttorne.v upon inquisition.

1223. Inquisition, how certified and filed.

1224. Proceedings upon finding of jury.

1225. Proceedings when female is supposed to be pregnant.

1226. Proceedings upon the finding of the jury.

1227. Judgment of death remaining in force, not executed.

1228. Punishment of death, how inflicted.

1229. Execution, where to take place and who to be present.

1230. Return upon death-warrant.

Execution of a Judgment other than of death.

1213. When a judgment, other than of death, has been pro-
nounced, a certified copy of the entry thereof upon the minutes
must be forthwith furnished to the officer whose duty it is to
execute the judgment, and no other warrant or authority Is
necessary to justify or require its execution.

108 Cal. 418.

If for fine alone, execution to issue as In civil cases.

1214. If the judgment is for a fine alone, execution may be
issued thereon as on a judgment in a civil action.

64 cal. 156; 64 Cal. iZS; 83 Cal. 390; US Cal. 37.
129 Cal. 548.

Judgment of fine and Imprisonment, how executed.

1215. If the judgment is for imprisonment, or a fine, and
imprisonment until it be paid, the defendant must forthwith
be committed to the custody of the proper officer, and by him
detained until the judgment is complied with.

63 Cal. 300; 64 Cal. 43S; 83 Cal. 390; »4 Cal.
890.

Judgment of imprisonment. Duty of sheriff.

1216. If the judgment is for imprisonment in the state prison,
the sheriff of the county must, upon receipt of a certified copy

. thereof, take and deliver the defendant to the warden of the
state prison. He must also deliver to the warden the certified
copy of the judgment, and take from the warden a receipt for
the defendant



Oa.



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1 2 1 7- 1 223 PBNAL CODE. TOO

Execution upon Judgment of death.

1217. When Judgment of death is rendered, a warrant, signed
by the Judge, and attested by the clerk, under the seal of the
court, must be drawn and delivered to the sheriff. It must
state the conviction and Judgment, and appoint a day on which
the Judgment is to be executed, which must not be less than
sixty nor more than ninety days from the time of Judgment, aad
must direct the sheriff to deliver the defendant, within ten days
from the time of Judgment, to the warden of one of the state
prisons of this state, for execution, such prison to be designated
in the warrant. [Amendment approved March 31, 1891; stats.
1891, p. 272.]

64 Cal. 92; 68 Cal. ISO; 98 Cal. 489; 96 Cal. 429;
119 Cal. 207.

Transmission of conviction and testimony to governor.

1218. The Judge of the court of which a conviction requiring
Judgment of death is had, must, immediately after the con-
viction, transmit to the governor, by mail or otherwise, a state-
ment of the conviction and Judgment, and of the testimony
given at the trial.

68 Cal. 190.

Governor may require opinion of Supreme Court thereon.

1219. The governor may thereupon require the opinion of
the Justices of the Supreme Court and of the attorney general,
or any of them, upon the statement so furnished.

Judgment of death, when suspended.

1220. No Judge, court, or officer, other than the governor,
can suspend the execution of a Judgment of death, except the
warden of the state prison to whom he is delivered for execution,
as provided in the six succeeding sections, unless an appeal is
taken. [Amendment approved March 31, 1891; stats. 1891, p.
273.1

Insanity of defendant, how determined.

1221. If, after judsrment of death, there is good reason
to suppose that the defendant has become Insane, the warden
of the state prison to whom he is delivered for execution, with
the concurrence of the judge of the Superior Court of the county
in which such prison is situated, may summon from the list of
Jurors selected by the supervisors for the year, a jury of twelve
persons, to inquire into the suppcsed insanity, and must give
immediate notice thereof to the district attorney of such
county. [Amendment approved March 31, 1891; stats. 1891. p.
273.]

Duty of district attorney upon inquisition.

1222. The district attorney must attend the inquisition, and
may produce witnesses before the jury, for which purpose he
may issue process in the same manner as for witnesses to attend
before the grand juiy, and disobedience thereto may be punished
in like manner as disobedience to process issued by the court

Inquisition, how certified and filed.

1223. A certificate of the inoiiisition must be signed by the
Jurors and the warden, and filed with the clerk of the Superior
Court of the county in which such state prison is situated.
[Amendment approved March 31, 1891; Stats. 1891, p. 273.]



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701 THE KXECOTION. 1224-1228

Proceedings upon finding of Jury.

1224. ' If it is found by the InQuisition that the defendant
is sane, the warden must execute the "judgment; but If it is
found that he is insane, the warden must suspend the execution
of the Judgment until he receives a warrant from the govenor,
or from the Judge of the Superior Court of the county in which
such state prison is situated, directing the execution of the
Judgment. If the inquisition finds that the defendant is Insane, ,
the warden must immediately transmit it to the governor, who '
may, when the defendant becomes sane, issue a warrant ap-
pointing a day for the execution of the Judgment [Amend-
ment approved March 31, 1891; Stats. 1891, p. 273.]

Proceedings when female Is supposed to be pregnant.

1225. If there is good reason to suppose that a female against
whom a Judgment of death is rendered is pregnant, the warden
of the state prison to whom she is delivered for execution, with
the concurrence of the Superior Court of the county in which
such state prison is situated, may summon a Jury of three
physicians to inquire into the supposed pregnancy. Immediate
notice thereof must be given to the district attorney of such
county, and the provisions of sections twelve hundred and
twenty-two and twelve hundred and twenty-three apply to the
proceedings upon the inquisition. [Amendment approved March
31, 1891; Stats. 1891. p. 273.1

Proceedings upon the finding of the Jury.

1226. If it is found by the inquisition that the female Is not
pregnant, the warden must execute the judgment; if it is found
that she is pregnant, the warden must suspend the execution
of the Judgment, and transmit the inquisition to the governor.
When the governor is satisfied that the female is no longer preg-
nant, he may issue his warrant appointing a day for the execu-
tion of the Judgment. [Amendment approved March 31, 1891;
Stats. 1891. p. 274.J

Judgment of death remaining in force, not executed.

1227. If for any reason a judgment of death has not been
executed, and it remains in force, the court in which the con-
viction is had, on the appjlcatlon of the district attorney of the
county in which the conviction is had, must order the defend-
ant to be brought before it, or if he is at large, a warrant for
apprehension may be issued. Upon the defendant being brought
before the court, it must inquire into the facts, and if no legal
reasons exist against the execution of the Judgment, must
make an order that the warden of the state prison to whom
the sheriff is directed to deliver the defendant, shall execute
the Judgment at a specified time. The warden must execute
the Judgment accordingly. [Amendment approved March 31.
1891; Stats. 1891, p. 274.]

54 Cal. 92; 61 Cal. 539; 68 Cal. 180; 92 Cal. 439;
119 Cal. 207: 120 Cal. 62f7.

Punishment of death, how inflicted.

1228. The punishment of death must be inflicted by hangine;
the defendant by the neck until he is dead.

59 Cal. 357.



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1229-1235 PENAL CODE. 702

Execution, where to take place and who to be present.

1229. A judgment of death must be executed within the walls
of one of the state prisons designated by the court by which
judgment is rendered. The warden of the state prison where the
execution is to take place must be present at the execution
and must invite the presence of a physician, the attorney general
of the state, and at least twelve reputable citizens, to be selected
by him; and he shall, at the request of the defendant, permit
such ministers of the gospel, not exceeding two, as the defend-
ant may name, and any persons, relatives or friends, not to ex-
ceed five, to be present at the execution, together with such
peace officers as he may think expedient, to witness the execu-
tion. But no other persons than those mentioned in this section
can be present at the execution, nor can any person under age
be allowed to witness the same. [Amendment approved March
31, 1891; Stats. 1891, p. 274.]

69 Oal. 855; 98 Cal. 439; 961 Cal. 429.

Return upon death-warrant.

1230. After the execution, the warden must make a return
upon the death warrant to the court by which the judgment
was rendered, showing the time, mode, and manner in which it
was executed. [Amendment approved March 31, 1891; Stats.
1891. p. 274.1

TITLE IX.
OP APPEALS TO THE SUPREME COURT.

Chap. I. Appeals, when allowed and how taken, and the Effect
thereof. 1236-46.
n. Dismissing an Appeal for Irregularity, 1248-9.
III. Argument of the Appeal, 1252-5.
rv. Judgment upon Appeal, 1258-65.



CHAPTER I.

APPEALS, WHEN ALLOWED AND HOW TAKEN, AND THE

EFFECT THEREOF.

Sec. 1235. Appeal, by whom taken, on questions of law alone.

1236. Parties, how designated on appeal.

1237. Appeal, when may be taken by the defendant.

1238. In what cases by the people.

1231). Appeals, within what time to be taken.

1240. Appeal, how taken.

1241. When notice may be served by publication.

1242. Effect of an appeal by the people.

1243. Effect of an appeal by the defendant.

1244. Same.
1245 Same.

1246. Duty of clerks upon appeal.

Appeal, by whom taken, on questions of law alone.

1235. Either party In a criminal action amounting to a
felony may appeal to the Supreme Court, on questions of law
alone, as prescribed in this chapter.

65 Cal. 645; 108 Cal. 663; 109 Cal. 279.



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703 APPEALS TO SUPREME COURT. 1236-1243

Parties, how designated on appeal.

1236. The party appealing is known as the appellant, and
the adverse party as the respondent, but the title of the action
is not changed in consequence of the appeal.

Appeal, when may be taken by the defendant.

1237. An appeal may be taken by the defendant:

1. From a final judgment of conviction;

2. From an order denying a motion for a new trial;

3. From any order made after judgment, affecting the sub-
stantial rights of the party.

54 Cal. 92: 66 Cal. 100; 77 Cal. 809; 82 Cal. 616;
95 CaJ. 595; 115 Cal. 161; 117 Cal. 666; 119 Cal. f;
119 Cal. 67; 119 Cal. 209; 132 Cal. 16.

In what cases by the people.

1238. An appeal may be taken by the people:

1. From an order setting aside the indictment or iniormation;

2. From a judgment for the defendant on a demurrer to the
Indictment or information;

3. From an order granting a new trial;

4. From an order arresting judgment;

5. F*rom' an order made after judgment, afiFecting the sub-
stantial rights of the people;

6. From an order of the court directing the jury to find for
the defendant. [Amendment approved March 27, 1897; Stats.
1897. p. 195. In effect immediately.]

65 Cal. 79: 65 Cal. 644; 70 Cal. 18; 71 Cal. 546;
107 Cal. 478; 113 Cal. 474; 114 Cal. 64.

Appeals, within what time to be taken.

1239. An appeal from a judgment must be taken within one
years after its rendition, and from an order, within sixty days
after it is made.

53 Cal. 690; 96 Cal. 595; 105 Cal. 263; 132 Cal.
139.

Appeal, how taken.

1240. An appeal is taken by filing with the clerk of the court
in which the judgment or order appealed from is entered or filed,
a notice stating the appeal from the same, and serving a copy
thereof upon the attorney of the adverse party.

49 Cal. 465; 66 Cal. 120; 62 Cal. 482; 66 Cal.
11; 70 Cal. 84; 77 Cal. 309; 119 Cal. 669.

When notice may be served by publication.

1241. If personal service of the notice cannot be made, the
judge of the court in which the action was tried, upon proof
thereof, may make an order for the publication of the notice In
some newspaper for a period not exceeding thirty days; such
publication is equivalent to personal service.

49 Cal. 455.

Effect of an appeal by the people.

1242. An appeal taken by the people in no case stays or
afFects the operation of a judgment in favor of the defendant,
until judgment is reversed.

Effect of an appeal by the defendant.

1243. An appeal to the Supreme Court from a judgment of
conviction stays the execution of the judgment in all capital
cases, and in all other cases, upon filing with the clerk of the
court in which the conviction was had, a certificate of the



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1244-1249 P£MAL CODE. 704

judge of such court, or of a justice of the Supreme Court, that^
in his opinion, there is probable cause for the appeal, but not
otherwise. [Amendment approved March 30, 1874; Amend-
ments 1873-4. p. 450. In effect July 1, 1874.]

49 Cal. 682: 68 Cal. 180: SI Cal. 164: 95 Cal. 59f:
96 Cal. 596: 104 Cal. 401: 119 Cal 129; 119 Cal.
210; 125 Cal. 252.

Same.

1244. If the certificate provided for in the preceding section
is filed, the sheriff must, if the defendant be in his custody, upon
being served with a copy thereof, keep the defendant in hl»
custody without executing the judgment, and detain him to
abide the judgment on appeal.

Same.

1245. If, before the granting of the certificate, the judgment
has commenced, the further execution thereof is suspended, and
upon service of a copy of such certificate the defendant must be
restored, by the oflScer in whose custody he is, to his original
custody.

Duty of clerks upon appeal.

124d. Upon the appeal being taken the clerk of the court
with whom the notice of appeal is filed must, within twenty
days thereafter, in case the bill of exceptions has been settled
by the judge before the giving of said notice, but if not, then
within twenty days from the settlement of the bill of exceptions,
without charge, transmit to the clerk of the appellate court,
fifteen printed copies (one of which shall be certified to and be
the original ) of the notice of appeal, the record, and of all
bills of exception; and upon receipt thereof the clerk of
the appellate court must file the original, and dispose of the
copies as he is required to do in the case of transcripts on appeal
in civil cases, and all his services as provided herein must be
without charge. The clerk of the lower court must also within
the time above specified serve printed copies of the above named
papers without charge upon the defendant's attorney and upon
the attorney-general. The printing of the above named papers
is a county charge. [Amendment approved March 19, 1889;
Stats. 1889, p. 325.]

84 Cal. 582: 115 Cal. 167: 120 Cal. 554.

CHAPTER II.
DISMISSING AN APPEAL FOR IRREGULARITY.

Sec. 1248. For what irregularity, and how dismissea.
1249. Dismissal for want of a return.

For what irregularity, and how dismissed.

1248. If the appeal is irregular in any substantial particular,
but not otherwise, the appellate court may, on any day, on
motion of the respondent, upon five days* notice, accompanied
with copies of the papers upon which the motion is founded,
order it to be dismissed. [Amendment approved April 9, 1880;
Amendments 1880, p. 10. In effect April 9, 1880.]

69 cal. 238: 95 Cal. 695; 1S2 Cal. 139.

Dismissal for want of a return.

1249. The court may also, upon like motion, dismiss the
appeal, if the return is not made as provided in section 1246,
unless for good cause they enlarge the time for that purpose.



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705 APPEAL — DISMISSING — ARGUMENT — JUDGMENT. 1252-1259-

CHAPTER III.
ARGUMENT OF THE APPEAL

Bee. 1252. Appeals, when to be heard and determined.

1253. Jad^ment cannot be reversed without argument.

1254. Number of counsel to be heard.

1255. Defendant need not be present.

Appeals, when to be heard and determined.

1252. All appeals in criminal cases must be heard and deter-
mined by the appellate court within sixty days after the record
is filed in said appellate court, unless continued on motion or
with the consent of the defendant/ [Amendment approved
April 9, 1880; Amendments 1880, p. l(f. in effect April 9, 1880.]

4 91 Cal. 29; 97 Cal. 249. K^

Judgment cannot be reversed without argutmnt.

1253. The judgment may be affirmed if th&^pellant fail ta
appear, but can be reversed only after argunfett^, though the
respondent fail to appear. Ov

6G Cal. 298; 97 Cal. 248. ^

Number of counsel to be heard. ^ '

1254. Upon the « argument of the appeal, if the off^se is
punishable with death, two counsel must be heard on each side,
if they require it. In any other case the court may, in its
discretion, restrict the argument to one counsel on each side.

65 Cal. 298.

Defendant need ^ not be present.

1255. The defendant need not personally appear in the
appellate court.

66 Cal. 298.

CHAPTER rV.
JUDGMENT UPON APPEAL.

S«c. 1258. Judgment without regard to technical errors.

1259. What may be reviewed on an appeal by defendant.

1260. May reverse, affirm, or modify the judgment, and order new

trial.

1261. New trial, where to be had.

1262. Defendant discharged on reversal of judgment.

1263. Judgment to be executed on affirmance.

1264. Judgment of appellate court, how entered and remitted.

1265. Jurisdiction ceases after Judgment remitted.

Judgment without regard to technical errors.

1258. After hearing the appeal, the court must give judgment
without regard to technical errors or defects, or to exception^,
which do not affect the substantial rights of the parties.

50 cal. 471: 63 Cal. 495; 601 Cal. 525: 56 Cal.
407; 57 Cal. 99; 58 Cal. 266; 59 Cal. 377; 59 Cal.
604: 62 Cal. 520; 63 Cal. 616; 66 Cal. 149: 65 Cal.
566: 71 Cal. 387: 78 Cal. 316; 88 Cal. 139; 88
Cal. 489; 90 Cal. 572; 94 Cal. 119; 102 Cal. 387;
104 Cal. 484; 105 Cal. 264; 106 Cal. 40; 109 Cal.
297; 116 Cal. 60; 117 Cal. 667; 120 Cal. 274; 133
Cal. 73; 133 Cal. 124.

What may be reviewed on an appeal by defendant.

1259. Upon an appeal taken by the defendant from a judgment
the court may review any intermediate order or ruling involv-
ing the merits, or which may have affected the judgment.

6Si Cal. 100: 119 Cal. 2.



CRiMC8 - 46



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1260-1265 PENAL CODE. 706

May reverse, affirm, or modify the Judgment, and order new
trial.

1260. The court may reverse, affirm, or modify the Judgment
or order appealed from, and may set aside, affirm, or modify
"Bny or all of the proceedings subsequent to, or dependent upon,
'*?uch Judgment or order, and may, if proper, order a new trial.

94 Cal. 286.

'<^New trial, where to be had.

1261. When a new trial is ordered it must be directed to
be had in the court of the county from which the appeal was
taken.

Defendant discharged on reversal of Judgment.

1262. If a Judgment against the defendant is reversed with-
out ordering a new trial, the appellate court must, if he is in
custody, direct him to be discharged therefrom; or if on bail,
that his bail be exonerated; or if money was deposited instead
of HE>ail, that it be refunded to the defendant.

61 Cal. 880.

Judgment to be executed on affirmance.

1*263. If a Judgment against the defendant is affirmed, the
original Judgment must be enforced.
54 Cal. io«.

Judgment of appellate court, how entered and remitted.

1264. When the Judgment of the appellate court is given,
it must be entered in the minutes, and a certified copy of the
entry forthwith remitted to the clerk of the court from which
the appeal was taken.

Jurisdiction ceases after Judgment remitted.

1265. After the certificate of the Judgment has been remitted
to the court below, the appellate court has no further Jurisdic-
tion of the appeal or of the proceedings thereon, and all orders
necessary to carry the Judgment into effect must be made by
the court to which the certificate is remitted.



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707 JUDGMENT ON APPEAD — BAIL.

TITLE X.
MISCELLANEOUS PROCEEDINGS.



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 64 of 77)