California Charles Howard Fairall.

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

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the depositions are required to be returned, at any time before
trial, and acknowleages that he has received satisfaction for the



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725 COMPROMISING OFFENSES — DISMIBSINQ ACTION. 1879-1384

injury, the court may, in its discretion, on payment oi the costs
incurred, order all proceedings to be stayed upon the pros-
ecution, and the defendant to be discharged therefrom; but in
such case the reasons for the order must be set forth therein,
and entered on the minutes. The order is a bar to another pros-
ecution for the same offense.

No public ofTense to be compromised except.

1379. No public offense can be compromised, nor can any pro-
ceeding Or prosecution for the punishment thereof upon a com-
promise be stayed, except as provided in this chapter.



CHAPTER VIII.
DISMISSAL OF THE ACTION BEFORE OR AFTER INDICT-
MENT FOR WANT OF PROSECUTION OR OTHERWISE.

Sec. 1382. When action may be dismissed.

1383. Continuance and discharge from onstody.

1384. If action dismissed, defendant to be discharged, etc.

1385. Dismissed on motion of court or application of district

attorney.

1386. Nolle prosequi abolished.

1387. Dismissal a bar In misdemeanor, but not in felony.

1388. Probationary treatment of Juvenile delinquents.
1380. Prohibiting minors to visit houses of ill fame.

When action may be dismissed.

1382. The court, unless good cause to the contrary is shown,
must order the prosecution to be dismissed in the following
cases:

1. When a person has been held to answer for a public
offense, if an indictment is not found or an information filed
against him, within thirty days thereafter.

2. If a defendant, whose trial has not been postponed upon
his application, is not brought to trial within sixty days after
the finding of the indictment, or filing of the information.
[Amendment approved April 9, 1880; amendments 1880, 29. In
effect April 9, 1880.]

614 Cal. 101; 54 Cal. 413; 63 Cal. 346; 65 Cal. 218;
69 Cal. 540; 77 Cal. 447; 82 Cal. 109; 85 Cal. 516;
91 Cal. 29; 99 Cal. 101; 100 Cal. 3; 113 Cal. 284;
116 cal. 152; 127 Cal. 373; 13o Cal. 162; 133 Cal.
351.

Continuance and discharge from custody.

1383. If the defendant is not charged or tried, as provided in
the last section, and sufficient reason therefor is shown, the
court may order the action to be continued from time to time,
and in the meantime may discharge the defendant from cus-
tody on his own undertaking of bail for his appearance to
answer the charge at the time to which the action is continued.
[Amendment approved April 9, 1880; amendments 1880, 29. In
effect April 9, 1880.]

54 Cal. 413.

If action dismissed* defendant to be discharged, etc.

1384. If the court directs the action to be dismissed, the
defendant must, if in custody, be discharged therefrom; or If
admitted to bail, his bail is exonerated, or money deposited
instead of bail must be refunded to him.

54 Cal. 414.



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1386-1388 PENAL CODE. 726

Dismissed on motion of court or application of district attorney.

1385. The court may» either of its owb motion or upon the
application of the district attorney, and in furtherance of Jus-
tice, order an action or indictment to be dismissed. The reasons
of the dismissal must be set forth in an order entered upon the
minutes.

48 Cal. 253; 64 Cal. ^SS; 71 Cal. 546; 85 Cal.
680; 127 Cal. 64; 130 Cal. 75; 132 Cal. 16.

Noile prosequi abolished.

1386. The entry of a nolle prosequi is abolished, and neither
the attorney general nor the district attorney can discontinue
or abandon a prosecution for a public offense, except as provided
in the last section.

85 Cal. 590.

Dismissal a bar in misdemeanor, but not in felony.

1387. An order for the dismissal of the action, as provided
in this chapter, is a bar to any other prosecution for the same
offense, if it is a misdemeanor; but it is not a bar if the offense
Is a felony.

48 Cal. 253; 52 Cal. 464; 64 Cal. 263; 123 Cal.
455; 127 Cal. 64; 130 Cal. 79; 132 Cal. 16.

Probationary treatment of Juvenile delinquents.

1388. Final judgment may be suspended on any conviction,
charge, or prosecution for misdemeanor, or felony, wherein the
Judgment of the court in which such proceeding is pending there
is a reasonable ground to believe that such minor may be
reformed, and that a commitment to prison would work manifest
injury in the premises. Such suspension may be for as long a
period as the circumstances of the case may seem to warrant,
and subject to the following further provisions: During the
period of such suspension, or of any extension thereof, the court
or Judge may, under such limitations as may seem advisable,
commit such minor to the custody of the officers or managers of
any strictly non-sectarian charitable corporation conducted for
the purpose of reclaiming criminal minors. Such corporation,
by its officers or managers, may accept the custody of such minor
for a period of two months (to be further extended by the court
or judge should it be deemed advisable), and should said minor
be found Incorrigible and Incapable of reformation, he may be
returned before the court for final judgment for his misdemeanor.
Such charitable corporation shall accept custody of said minor
as aforesaid upon the distinct agreement that it and its officers
shall use all reasonable means to effect the reformation of such
minor, and provide him with a home and instruction. No appli-
cation for guardianship of such minor by any person, parent,
or friend shall be entertained by any court during the period of
such suspension and custody, save upon recommendation of the
court before which the criminal proceedings are pending first
obtained. Such court may further, in Its discretion, direct the
payment of the expenses of the maintenance of such minor dur-
ing such period of two months, not to exceed. In the aggregate,
the sum of $25 (twenty-five dollars), which sum shall include
board, clothing, transportation, and all other expenses, to be
paid by the county where such criminal proceeding is pending,
or direct action to be instituted for the recovery thereof out ot
the estate of said minor, or from his parents. Such court may



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727 PROCEEDINGS AGAINST CORPORATIONS. 1389-1392

also revoke such order of suspension at any time. [Approved
March 15, 1883. Stats. 1883, 377.]

71 Cal. 628; 93 Cal. 640; 113 Cal. 588.

Prohibiting minors to visit houses of iil fame.

1389. That no minors in the employ of any telephone com-*
pany, special delivery company, or association, or any other
corporation, or person or persons, engaged in the delivery of
packages, letters, notes, messages, or other matter, shall be
assigned by such corporations, or person or persons, to hire such
minors to the keepers of houses, variety theatres, or other places
of questionable repute, or to other persons connected with such
places of questionable repute, nor to permit them to enter such
places of illegal or questionable calling; that this law shall
apply alike to managers, superintendents, and agents of such
corporations, and to be enforced against them. [New section
approved March 15, 1887. Stats. 1887, 119. In effect March 15,
1887. Violation is by sec. 2, of act a misdemeanor.]



CHAPTER IX.
PROCEEDINGS AGAINST CORPORATIONS.

Sec. 1.390. Summons upon information against corporation.

1391. Form of summons.

1392. When and how served.

1303. Examination of the charge.

1304. Certificate of magistrate and return of depositions.

1395. Grand jury to Investigate If there Is sufficient cause.

1396. Appearance and plea.

1397. Fine on conviction, how collected.

Summons upon information against corporation.

1390. Upon an Information or presentment against a cor-
poration, the magistrate must Issue a summons, signed by him,
with his name of office, requiring the corpo'-atlon to appear
before him, at a specified time and place, to answer the charge,
the time to be not less than ten days after the issuing of the
summons.

Form of summons.

1391. The summons must be substantially in the following
form: County of [as the case may be.]

The people of the state of California to the [naming the cor-
poration] :

You are hereby summoned to appear before me at [naming
the place], on [specifying the day and hour], to answer a charge
made against you upon the Information of A B [or the present-
ment of the grand jury of the county, as the case may be], for
[designating the offense generally]. Dated at the city [or

township] of , this — day of , eighteen . G H,

justice of the peace, [or as the case may be].

When and liow served.

1392. The summons must be served at least five days before
the day of appearance fixed therein, by delivering a copy thereof
and showing the original to the president or other head of the
corporation, or to the secretary, cashier, or managing agent
thereof.



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1393-1401 PENAL CODE. 728

Examination of the charge.

1393. At the appointed time in the summons, the magistrate
must proceed to investigate the charge in the same manner as
In the case of a natural person, so far as these proceedings are
applicable.

Certificate of magistrate and return of depositions.

1394. After hearing the proofs, the magistrate must certify
upon the depositions, either that there is or is not sufficient
cause to believe the corporation guilty of the offense charged,
and must return the deposition and certificate, as prescribed
In section 883.

Grand Jury to investigate if there is sufficient cause.

1395. If the magistrate returns a certificate that there is
sufficient cause to believe the corporation guilty of tne offense
charged, the grand jury may proceed, or the district attorney
file an information thereon, as in case of a natural person held
to answer. [Amendment approved April 9, 1880; amendments
1880, 29. In effect April 9, 1880.]

Appearance and piea.

1396. If an indictment is found, or information filed, the cor-
poration may appear by counsel to answer the same. If it does
not thus appear, a plea of not guilty must be (entered, and the
same proceedings had thereon as in other cases. [Amendment
approved April 9, 1880; amendments 1880, 29. In effect April
9, 1880.]

Fine on conviction, how collected.

1397. When a fine is imposed upon a corporation on con-
viction, it may be collected by virtue of the order imposing it,
by the sheriff of the county, out of its real and personal prop-
erty, in the same manner as upon an execution in a civil action.



CHAPTER X.

ENTITLING AFFIDAVITS.

Sec. 1401. AffldavlU defectively entitled, valid.

Affidavits defectively entitled, valid.

1401. It is not necessary to entitle an aflfldavit or deposition
in the action, whether taken before or after indictment or
information, or upon an appeal; but if made without a title,
or with an erroneous title. It is as valid and effectual for every
purpose as if it were duly entitled, if it intelligibly refer to the
proceeding, indictment, information, or appeal in which it is
made. [Amendment approved April 9, 1880; amendments 1880,
'30. In effect April 9, 1880.]



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729 ERRORS — DISPOSAL OF STOLEN PROPERTY. 1404-1410

CHAPTER XI.
ERRORS AND MISTAKES IN PLEADINGS AND OTHER PRO-
CEEDINGS.
8€c. 1404. When not material.

When not material.

1404. Neither a departure from the form or mode prescribed

^ by this code in respect to any pleading or proceeding, nor an

error or mistake therein, renders it invalid, unless it has actually

prejudiced the defendant, or tended to his prejudice, in respect

to a substantial right.

49 Cal. 390: 53 Cal. 494; 67 Cal. 90; 67 Cal. 98:
69 Cal. «84; 62 Cal. 520; 64 Cal. 213; 64 Cal. 372;
64 Cal. 426: 67 Cal. 56: »a Cal. 583; 94 Cal. 119;
96 Cal. 819; 102 Cal. 242; m Cal. 306; 116 Cal.
198; 120 Cal. 663; 133 Cal. 124.

CHAPTER XII.

DISPOSAL OF PROPERTY STOLEN OR EMBEZZLED.

Sec. 1407. Peace offlcer must hold property subject to the order of
magistrate.

1408. Order for its delivery to owner.

1409. Magistrate must denver It to owner.

3410. Court in which trial is had may order Its delivery.

1411. Delivered to county treasurer If not claimed In six months.

1412. Receipt for money, etc., taken from person arrested.

1413. Record of property alleged to be stolen.

Peace officer must hold property subject to the order of
magistrate. *

1407. When property, alleged to have been stolen or em-
bezzled, comes into the custody of a peace offlcer, he must hold
it subject to the order of the magistrate authorized by the next
section to direct the disposal thereof.

Order for its delivery to owner.

1408. On satisfactory proof of the ownership of the property,
the magistrate before whom the information is laid, or who
examines the charge against the person accused of stealing or
embezzling it, must order it to be delivered to the owner, on his
paying the necessary expenses incurred in its preservation, to be
certified by the magistrate. The order entitles the owner to
demand and receive the property.

Magistrate must deliver it to owner.

1409. If property stolen or embezzled comes into custody of
the magistrate, it must be delivered to the owner on satisfactory
proof of his title, and on his paying the necessary expenses
Incurred in its preservation, to be certified by the magistrate.

Court in which trial is had may order its delivery.

1410. If the property stolen or embezzled has not been
delivered to the owner, the court before which a trial is had for
stealing or embezzling it may, on proof of his title, order it to be
restored to the owner.



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1411-1418 PENAL CODE. 730

Delivered to county treasurer if not claimed in six months.

1411. If the property stolen or embezzled is not claimed by
the owner before the expiration of six months from the con-
viction of a person for stealing or embezzling It. the magistrate
or other officer having it in custody must, on the payment of
the necessary expenses incurred in its preservation, deliver it to
the county treasurer, by whom it must be sold and the proceeds
paid into the county treasury.

Receipt for money, etc., taken from persofi arrested.

1412. When money or other property is taken from a defend-
ant» arrested upon a charge of a public offense, tue officer taking
it must at the time give duplicate receipts therefor, specifying
particularly the amount of money or the kind of property taicen;
one of which receipts he must deliver to the defendant and the
other of which he must forthwith file with the clerk of the court
to which the depositions and statement are to be sent. When
such property is taken by a police officer of any incorporated
city or town, he must deliver one of the receipts to the defend-
ant, and one, with the property, at once to the clerk or other
person In charge of the police office in such city or town.

Record of property alleged to be stolen.

1413. The clerk in, or person having charge of, the. police
office ih any incorporated city or town, must enter in a suitable
book a description of every article of property alleged to be
stolen or embezzled, and brought into the office or taken fmm
the person of a prisoner, and must attach a number to each
article, and make a corresponding entry thereof.



CHAPTER XIII.
REPRIEVES, COMMUTATIONS AND PARDONS.

Bee. 1417. Governor may grant reprieves, commntatlons, and pardons.

1418. His power In respect to eonvletlons for treason.

1419. To communicate to the leglslntore reprieves, commntatlons,

and pardons.

1420. Report of case, how and from whom required.

1421. Notice to district attorney of application for j;>ardon.

1422. Publication of notice.

1423. When two preceding sections are not applicable.

Governor may grant reprieves, commutations, and pardons.

1417. The governor has power to grant reprieves, commu-
tations, and pardons, after conviction, for all offenses, except
treason and cases of impeachment, upon such conditions and
with such restrictions and limitations as he may think proper,
suhject to the regulations provided in this chapter.

68 Cal. 180.

Hit power in respect to convictions for treason.

1418. He may suspend the execution of the sentence, upon
a conviction for treason, until the case can be reported to the
legislature at Its next meeting, when the legislature may either
pardon, direct the execution of the sentence, or grant a further
reprieve; provided, that neither the governor nor the legislature
shall have power to grant pardons or commutations of sen-
tence in any case where the convict has been twice convicted of
felony, after the first day of January, eighteen hundred and



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731 REPRIEVES, COMMUTATIONS AND PARDONS. 1419-1423

eighty, unless upon the written recommendation of a majority
of the Judges of the Supreme Court. [Amenament approved
Pehruary 18, 1880; amendments 1880, 2. In effect February 18.
1880.]

W Cal. 180.

To communicate to the legislature reprieves, commutations, and
pardons.

1419. He must, at the beginning of every session, com-
municate to the legislature each*#case of reprieve, commutation,
or pardon, stating the name of the convict, the crime of which
he was convicted, the sentence and its date, and the date of
the commutation, pardon, or reprieve, and the reasons for grant-
ing the same. [Amendment approved February 18, 1880; amend-
ments 1880, 3. In effect February 18, 1880.]

Report of case, how and from whom required. .

1420. When an application is made to the governor for a
pardon, he may require the judge of the court before which the
conviction was had, or the district attormey by whom the action
was prosecuted, to furnish him, without delay, with a statement
of the facts proved on the irial, and of any other facts having
reference to the propriety of granting or refusing the pardon.

68 Cal. 180.

Notice to district attorney of application for pardon.

1421. At least ten days before the governor acts upon an
application for a pardon, written notice of the intention to apply
therefor, signed by the person applying, must be served upon the
district attorney of the county where the conviction was had,
and proof, by affidavit, of the service must be presented to the
governor.

Publication of notice.

1422. Unless dispensed with by the governor, a copy of the
notice must also be published for thirty days from the first pub-
lication, in a paper in the county in which the conviction was
had.

When two preceding sections are not applicable.

1423. The provisions of the two preceding sections are not
applicable:

1. When there Is imminent danger of the death of the person
convicted or imprisoned; ,

2. When the term of Imprisonment of the applicant is within
ten days of Its expiration.



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1426-1427 PENAL CODE. 732

TITLE XI.

OF PROCEEDINGS IN JUSTICES' AND POLICE COURTS, AND

APPEALS TO SUPERIOR COURTS.

Chapter I. Proceedings in justices' and police courts, sections
1426-61.
II. Appeals to superior courts, sections 1466-70.

CHAPTER L
PROCEEDINGS IN JUSTICES' AND POLICE COURTa

Sec. 1426. I*roceediDgs mnBt be commeDced by compUlnt.

1427. When warrant of arrest must issue. Form of warrant.

1428. Minutes, bow kept.

1429. The plea, and bow put In.
1480. Issue, bow tried.

1431. Change of venue, when granted.

1482. Proceedings on change of venue.

1433. Postponement of the trial.

1484. Defendant to be present.

1435. Jury trial, how waived.

1436. Challenges.

1437. Oath of jurors.

1438. Trial, how conducted.

1439. Court to decide questions of law, but not of fact.

1440. Jury may decide In court, or retire.

1441. Verdict of jury, how delivered and entered.

1442. Verdict, when several defendants are tried together.

1443. Jury, when to be discharged without a verdict.

1444. If discharged, defendant may be tried again.

1446. Proceedings on plea of guilty, or on conviction.
144rt. Judgment of line may direct Imprisonment.

1447. Defendant, on acquittal, to bo discharged. Costs.

1448. Judgment against prosecutor for costs.

1449. Judgment, when to be rendered.

1450. Motion for a new trial, or In arrest of judgment

1451. New trial, grounds of.

1452. Grounds of motion In arrest of judgment

1453. Judgment to be entered In the minutes.

1454. Discharge of defendant on judgment of acquittal or flue

only.

1455. Judgment of Imprisonment, how executed.

1456. Judgment of Imprisonment until fine is paid, how executed.

1457. Fines, disposition of.

1458. Defendant may bci admitted to ball.

1459. Subpoenas.

1460. Entitling affidavits.

1461. **Pollce courts" defined.

Proceedings must be commenced by complaint.

1426. All proceedings and actions before a justices' or police
court, for a public offense of which such courts have jurisdiction,
must be commenced by complaint under oath, setting forth the
offense charged, with such particulars of time, place, person,
and property as to enable the defendant to understand dis-
tinctly the character of the offense complained of. and to
answer the complaint.

S4 Cal. 409: 65 Cal. 228: 80 Cal. 10&; 65 Cal. 615;

106 cal. 407; 109 Cal. 460.

When warrant of arrest must issue. Form of warrant.

1427. If the justice of the peace, or police justice, is satisfied
therefrom that the offense complained of has heen committed,
he must issue a warrant of arrest, which must he sabetantially
in the following form:



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733 PR0GEBDING8 IN JUSTICE'S COURTS. 1428-1431



County of



The people of the state of California to any sheriff, constable,
marshal, or policeman in this state:

Complaint upon oath having been this day made before me

, [justice of the peace or police justice, as the case may

be] by C D, that the offense of [designating it generally] has
been committed, and accusing E F thereof; you are therefore
commanded forthwith to arrest the above named E ■ F and bring
him before me forthwith, ^t [naming the place].

Witness my hand and seal at , this — day of ,

A. D. . I A B.

Minutes, how kept.

1428. A docket must be kept by the Justice of the peace or
police Justice, or by the clerk of the courts held by them, if
there is one, in which must be entered each action and the
proceedings of the court therein.

9i Cal. 228; 94 Cal. 499.

The plea, and how put in.

1429. The defendant may make the same plea as upon an
Indictment, as provided In section ten hundred and sixteen. His
plea must be oral, and entered in the minutes. If the defend-
ant plead guilty, the court may, before entering such plea or
pronouncing judgment, examine witnesses to ascertain the grav-
ity of the offense committed; and if it appear to the court that
a higher offense has been committed than the offense charged
in the complaint, the court may order the defendant to be com-
mitted or admitted to bail, to answer any indictment which may
be found against him by the grand jury, or any information
which may be filed by the district attorney. [Amendment ap-
proved April 9, 1880; amendments 1880, 30. In effect April 9,
1880.]

«0 Cat 106.

Issue, how tried.

1430. Upon a plea other than a plea of guilty, if the parties
waive a trial by jury, and an adjournment or change of venue
is not granted, the court must proceed to try the case. [Amend-
ment approved February 25, 1880; amendments 1880. 5. In
effect February 25, 1880.]

92 Cal. 576.

Change of venue, when granted.

1431. If the action or proceeding is in a justice's court, a
change of the place of trial may be had at any time before the
trial commences:

1. When it appears from the affidavit of the defendant that he
has reason to believe, and does believe, that he cannot have a
fair and impartial trial before the justice about to try the case,
by reason of the prejudice or bias of such justice, the cause
must be transferred to another justice of the same or an adjoin-
ing township;

2. When it appears from affidavits that the defendant cannot
have a fair and impartial trial, by reason of the prejudice of
the citizens of the township, the cause must be transferred to a
justice of a township where the same prejudice does not
exist.

8S Cal. e02; 119 Cal. 402.



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1493-1440 PENAL CODE. 784

Proceedings on change of venue.

1432. When a change of the place of trial is ordered, the
justice must transmit to the justice before whom the trial 13
to be had all the original papers in the cause, with a certified
copy of the minutes of his proceedings; and upon receipt thereof,
the justice to whom they are delivered must proceed with the



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 67 of 77)