California Charles Howard Fairall.

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

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trial In the same manner as if the proceeding or action had been
originally commenced in his court

Postponement of the trial.

1433. Before the commencement of a trial in any of the conrta
mentioned in this chapter, either party may, upon good caose
shown, have a reasonable postponement thereof.

66 Cal. 396.

Defendant to be present.

1434. The defendant must be personally present before the
trial can proceed.

Jury trial, how waived.

1435. A trial by jury may be waived by the consent of both
parties expressed in open court and entered in the docket. The
formation of the jury is provided for in chapter one, title three,
part one, of the Code of Civil Procedure. [Amendment approved
February 25, 1880; amendments 1880, 5. In effect February 25,

91 Cal. 676.


1436. The same challenges may be taken by either party to
the panel of jurors, or to any individual juror, as on the trial
of an indictment for a misdemeanor; but the challenge must
in all cases be tried by the court.

Oath of Jurors.

1437. The court must administer to the jury the following
oath; "You do swear that you will well and truly try this issue
between the people of the State of California and A B, the
defendant, and a true verdict render according to the evidence."

Trial, how conducted.

1438. After the jury are sworn, they must sit together and
hear the proofs and allegations of the parties, which must be
delivered in public and in the presence of the defendant.

Court to decide questions of law« but not of fact.

1439. The court must decide all questions of law which may
arise in the course of the trial, but can give no charge with
respect to matters of fact.

Jury may decide in court, or retire.

1440. After hearing the proofs and allegations, the jury may
decide in court, or may retire for consideration. If they do not
immediately agree, an officer must be sworn to the following
effect: "You do swear that you will keep this jury together in
some quiet and convenient place; that you will not permit any
person to speak to them, nor speak to them yourself, unless i.y
order of the court, or to ask them whether they have agreed
upon a verdict; and that you will return them into court when
they have eo agreed, or when ordered by the court."

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Verdict of Jury, how delivered and entered.

1441. The verdict of the jury must in all cases be general.
When the jury have agreed on their verdict, they must deliver
!t publicly to the court, who must enter, or cause it to be
entered, in the minutes.

Verdict, when several (jlefendants are tried together.

1442. When several defendants are tried together, 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 a judg-
ment must be entered accordingly, and the case as to the rest
may be tried by another jury.

Jury, when to be discharged without a verdict.

1443. The jury cannot be discharged after the cause is sub-
mitted to them, until they have agreed upon and rendered their
verdict, unless for good cause the court sooner discharges them.

If discharged, defendant may be tried again.

1444. If the jury is discharged, as provided in the last sec-
tion, the court may proceed again to the trial, in the same
manner as upon the first trial, and so on, until a verdict Is ren-

Proceedings on plea of guilty, or on conviction.

1445. When the defendant pleads guilty, or is convicted,
either by the court, or by a jury, the court must render judg-
ment thereon of fine or imprisonment, or both, as the case may
be. [Amendment approved March 30, 1874; amendments 1873-4,
453. In effect July 1, 1874.]

60 Cal. 435.

Judgment of fine may direct Imprisonment.

1446. A judgment that the defendant pay a fine may also
direct that he be imprisoned until the fine be satisfied, in the
proportion of one day's imprisonment for every dollar of the
fine. [Amendment approved March 7, 1874; amendments 1873-4,
455. In effect in 60 days.]

60 Cal. 434: 63 Cal. 300; 65 Cal. 156; 73 Cal. 496:
80 Cal. 203; 82 Cal. 455; 84" Cal. 166; 85 Cal. 38:
88 Cal. 626; 89 Cal. 473; 96 Cal. 364; 97 Oal. 628.

Defendant, on acquittal, to be discharged. Costs.

1447. When the defendant is acquitted, either by the court
or by the jury, he must be immediately discharged; and if the
court certify in the minutes that the prosecution was malicious
or without probable cause, it may order the prosecutor to pay
the costs of the action, or to give satisfactory security by a
written undertaking, with one or more sureties, to pay the same
within thirty days after the trial.

Judgment against prosecutor for costs.

1448. If the prosecutor does not pay the costs, or give security
therefor, the court may enter judgment against him for the
amount thereof, which may be enforced in all respects in the
same manner as a judgment rendered in a civil action.

Judgment, when to be rendered.

1449- After a plea or verdict of guilty, or after a verdict
against the defendant, on a plea of a former conviction or
acquittal, the court must appoint a time for rendering judgment,

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1450-1455 PBNAL CODE. 736

whictL must not be more than two days nor less than six hours
after the verdict is rendered, unless the defendant waive the
postponement. If postponed, the court may hold the defendant
to bail to appear for judgment. [Amendment approved Bfarch
30, 1874; amendments 1873-4, 454. In effect July 1. 1874.]

62 Cal. 633: 63 Cat. 491.

Motion for a new trial, or in arrest of Judgment.

1450. At any time before Judgment, defendant may move fdr
a new trial or in arrest of Judgment.

New trial, grounds of.

1451. A new trial may be granted in the following cases:

1. When the trial has been had in the absence of the defend-
ant, unless he voluntarily absent himself, with full knowledge
that a trial is being had;

2. When the Jury has received any evidence out of court;

3. When the Jury has separated without leave of the court,
after having retired to deliberate upon, their verdict, or been
guilty of any misconduct tending to prevent a fair and due
consideration of the case;

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

5. When there has been error in the decision of the court,
given on any question of law arising during the course of the

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; but when a motion for a
new trial is made upon this ground, the defendant must produce
at the hearing the affidavits of the witnesses by whom such
newly discovered evidence is expected to be given.

Grounds of motion in arrest of Judgment.

1452. The motion in arrest of Judgment may be founded on
any substantial defect in the complaint, and the effect of an
arrest of Judgment is to place the defendant in the same situation
in which he was before the trial was had.

Judgment to be entered in the minutes.

1453. If the Judgment is not arrested, or a new trial granted.
Judgment must be pronounced at the time appointed and
entered in the minutes of the court.

Discharge of defendant on Judgment of acquittal or fine only.

1454. If Judgment pf acquittal is given, or Judgment imposing
a fine only, without imprisonment for non-paynlent, and the
defendant is not detained for any other legal cause, he must be
discharged as soon as the Judgment is given.

Judgment of imprisonment, how executed.

1455. When a Judgment of imprisonment is entered, a certliied
copy thereof must be delivered to the sheriff, marshal, or other
officer, which is a sufficient warrant for its execution.

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787 PR0CBKDING8 — ^APPEALS. 1466-1466

Judgment of Imprisonment until fine is paid, how executed.

1456. When a judgment is entered imposing a fine, or order-
ing the defendant to be imprisoned until the fine is paid, be
must be held in custody . during the time specified In the judg-
ment, unless the fine is sooner paid.

54 Cal. 206; 64 Cal. 438: 82 Cal. 465.

Fines, disposition of.

1457. Upon payment of the fine, the officer must discharge the
defendant, if he is not detained for any other legal cause, and
pay over the fine within ten days to the county or city treasurer,
according as the ofCense is prosecuted for the violation of a
state law or a city ordinance, whether in the justice's court or
police court; provided, that all forfeitures and fines collected
for the violation of any city ordinance, whether in the police
court or justice's court, shall be paid over to the city treasurer
of the city in which such ordinance is in force. If a fine la
imposed, and paid before commitment, it must be paid over aa
prescribed in this section. [In effect Feb. 28, 1901; Stats. 1901,
p. 88.]

65 Cal. 478: 88 Cal. 411.

Defendant may be admitted to bail.

1458. The defendant, at any time after his arrest, and before
conviction, may be admitted to bail. The provisions of this
code relative to bail are applicable to bail in justices' or police


1459. The justice or judge of either of the courts mentioned
in this chapter may issue subpoenas for witnesses, as provided
in section 1326, and punish disobedience thereof, as provided -in
section 1331.

Entitling affidavits.

1460. The provisions of section 1401, in respect to entitling
affidavits, are applicable to proceedings in the courts men-
tioned in this chapter.

"Police courts" defined.

1461. The term "police courts," as used in this and the suc-
ceeding chapter, includes police judges' courts, police courts,
and all courts held by mayors or recorders In incorporated cities
or towns.

66 Cal. 5: 88 Cal. 410


Bee. 1466. Appeals, when allowed.

1467. Appeals, bow taken, heard, and determined.

1468. Statement on appeal.

1469. If new trial granted. In what court had.

1470. Proceedings, If appeal is dismissed or Judgment affirmed.

Appeals, when allowed.

1466. Either party may appeal to the Superior Court of the
county from a judgment of a justice's or police court, in like
cases and for like cause as appeals may be taken to the Supreme
Court. [Amendment approved April 12, 1880; amendments 1880,
34. In effect April 12, 1880.]

66 Cal. 401: 82 Cal. 615; 92 Cal. 574.


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1467-1470 PENAL ooDB. 738

Appeals, how taken, heard and determined.

1467. The appeal is taken, heard, and determined as pro-
Tided in title IX, part II of this code.

72 Cal. If: 82 C&l. 616.

"Statement on appeal.

1468. The appeal to the Superior Court from the judgment
^f a justice's or police comt is heard upon a statement of the
-^case settled by the justice or police judge, embodying such
rulings of the court as are ez^tl^d^o, which statement must be
:flled with and settled by the cdbrrpjj^in ten days after filing
notice of appeal. [Amendment apprd^MA^^' ^^> 1880; amend-
ments 1880, 35. In effect April 12, 1880.J ^Q>s

If new trial granted, in what court had. ^^Jy

1469. If a new trial is granted upon appeal, it idust be had
in the Superior Court. [Ajnendment approved April 12, 1880;
amendments 1880, 35. In effect April 12th, 1880.]

72 Cal. 15; 92 Cal. S7«.

Proceedings, if appeal is dismissed or judgment affirmed.

1470. If the appeal is dismissed or the judgment affirmed,
a copy of the order of dismissal or judgment of affirmance must
be remitted to the court below, which may proceed to enforce
its sentence.

54 Cal. S45: m Cal. 104.

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789 WRIT OF HABEAS CX)RPUB. 1473-1474


Chapter I. Of the writ of habeas corpus, sections 1473-1505.
II. Of coroners' Itiquests and duties of coroners, sec-
tions 1510-19.

III. Of search-warrants, sections 1523-42.

IV. Proceedings against fugitives from Justice, sections

V. Miscellaneous provisions respecting special pro-
ceedings of a criminal nature, sections 1562-4.


Sec. 1473. Who may prosecute writ.

1474. Application for, how made.

1475. By whom Issued, and before whom returnable.

1476. Writ must be granted without delay.

1477. Writ, what to contain.

1478. How served.

1479. Proceedings upon disobedience to the writ.

1480. Return, what to contain.

1481. Body must be produced, when.

1482. Hearing without production of the body.

1483. Hearing on return.

1484. Proceedings on the hearing.

1485. When court may discharge the party.

1486. When to remand party.

1487. Grounds of discharge in certain cases.

1488. Not to be discharged for defect of form in warrant.

1489. Proceedings on defective warrant.

1490. Writ for purposes of ball. •

1491. Judge may take ball.

1492. Judge, when to remand.

1493. Person in illegal, may be committed to legal custody.

1494. Disposition of party, pending proceedings on return.

1495. Defect of form In the writ Immaterial, when.

1496. Imprisonment after discharge, when permitted.

1497. Warrant may issue Instead of writ, In certain cases.

1498. Warrant may Include person charged with illegal detention.

1499. Warrant, how executed.

1500. Return and hearing on.

1501. Party may be discharged or remanded.

1502. Writ and process may issue at any time.

1503. By whom issued and when returnable.

1504. Where returnable.

1505. Damages for failure to issue or obey the writ.

Who may prosecute writ.

1473. Every person unlawfully imprisoned or restrained of
his liberty, under any pretense whatever, . may prosecute a writ
of habeas corpus, to inquire into the cause of such imprisonment
or restraint. [Amendment approved March 30, 1874; amend-
ments 1873-4, 454. In effect July 1, 1874.]

Appiicatlon for, how made.

1474. Application for the writ is made by petition, signed
either by the party for whose relief it is intended, or by some
person in his behalf, and must specify :

1. That the person in whose behalf the writ is applied for
is imprisoned or restrained of his liberty, the officer or person
by whom he is so confined or restrained, and the place where,
naming all the parties, if they are known, or describing them.
If they are not known;

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1476-1480 PENAL coDB. 740

2. If the Imprisonment is alleged to be illegal, the petition
must also state in what the alleged illegality consists;

3. The petition must be verified by the oath or affirmation
of the party making the application.

^y whom issued, and before whom returnable.
14V 5. The writ of habeas corpus may be granted:

1. By the Supreme Court, or any justice thereof, upon petition
by or on behalf of any person restrained of his liberty in this
state. When so issued it may be made returnable before the
court, or any justice thereof, or before any Superior Court or
any judge thereof.

2. By the Superior Courts, or a judge thereof, upon petition
by or on behalf of any person restrained of his liberty in their
respective counties. [Amendment approved February 18. 1880;
amendments 1880, p. 4. In effect February 18, 1880.]

Writ must be granted without delay.

1476. Any court or judge authorized to grant the writ, to
whom a petition therefor is presented, must, if it appear that
the writ ought to issue, grant the same without delay.

Wrlt« what to contain.

1477. The writ must be directed to the person' having cus-
tody of or restraining the person on whose behalf the appli-
cation is made, aod must command him to have the body of
such person before the court or judge before whom the writ is
returnable, at a time and place therein specified.

How served.

1478. If the writ is directed to the sheriff or other minis-
terial oflacer of the court out of which it issues, it must be
delivered by the clerk to such officer without delay, as other writs
are delivered for service. If it is directed to any other person,
it must be delivered to the sheriff, and be by him served upon
such person by delivering the same to him without delay. If
the person to whom the writ is directed cannot be found, or
refuses admittance to the officer or person serving or delivering
such writ, it may be served or delivered by leaving it at the
residence of the person to whom it is directed, or by affixing
it to some conspicuous place on the outside either of his dwelling-
house or of the place where the party is confined or under

77 Cal. IGO: 126 Cal. 616.

Proceedings upon disobedience to the writ.

1479. If the person to whom the writ is directed refuses, after
service, to obey the same, the court or judge, upon affidavit,
must issue an attachment against such person, directed to the
sheriff or coroner, commanding nim forthwith to apprehend such
person and bring him immediately before such court or judge;
and upon being so brought, he must be committed to the jail
of the county until he makes due return to such writ, or is
otherwise legally discharged.

Return, what to contain.

1480. The person upon whom the writ is served must state In
his return, plainly and unequivocally:

1. Whether he has or has not the party In his custody, or
under his power or restraint;

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741 WRIT OF HAB£A8 CORPUS. 1481-1484

2. If he has the party in his custody or power, or under his
restraint, he must state the authority and cause of such
imprisonment or restraint;

3. If the party is detained by virtue of any writ, warrant, or
other written authority, a copy thereof must be annexed to the
return, and the original produced and exhibited to the court or
judge on the hearing of such return;

4. If the person upon whom the writ is served had the party
In his power or custody, or under his restraint, at any time
prior or subsequent to the date of the writ of habeas corpus,
but has transferred such custody or restraint to another, the
return must state particularly to whom, &% what time and place,
for what cause, and by what authority such transfer took

5. The return must be signed by the person making the
same, and, except when such person is a sworn public officer,
and makes such return in his official capacity, it must be verified
by his oath.

71 Cal. 288.

Body must be produced, when.

1481. The person to whom the writ is directed, if it Is
served, must bring the body of the party in his custody or under
his restraint, according to the command of the writ, except in
the cases specified in the next section.

Hearing without production of the body.

1482. When, from sickness or infirmity of the person directed
to be produced, he cannot, without danger, be brought before
the court or judge, the person in whose custody or power he
is may state that fact in his return to the writ, verifying the
same by affidavit. If the court or judge is satisfied of the truth
of such return, and the return to the writ is otherwise suffi-
cient, the court or judge may proceed to decide on such return,
and to dispose of the matter as if such party had been pro-
duced on the writ, or the hearing thereof may be adjourned
until such party can be produced.

Hearing on return.

1483. The court or judge before whom the writ is returned
must, immediately after the retHrn, proceed to hear and
examine the return, and such other matters as may be properly
submitted to their bearing and consideration.

Proceedinga on tlie hearing.

1484. The party broiiglit before the court or judge, on the
return of the writ, may deny or controvert any of the material
facts or matters set forth in the return, or except to the suffi-
ciency thereof, or allege any fact to show either that hia
imprisonment or dotontion Is unlawful, or that he is entitled
to his discharge. The court or judge must thereupon proceed
in a summary way to hear such proof as may be produced
against such imprisonment or detention, or in favor of the
same, and to dispose of such party as the justice of the case may
require, and have full power and authority to require and com-
pel the attendance of witnesses, by process of subpoena and
attachment, and to do and perform all other acts and things
necessary to a full and fair hearing and determination of the

69 Cal. 422; 92 Cal. 190; 126 Cal. 619.

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1485-1489 PENAL CODE. 742

When court may discharge the party.

1485. If no legal cause is shown for such imprisonment or
restraint, or for the continuation thereof, such court or judge
must discharge such party from the custody or restraint under
which he is held.

When to remand party.

1486. The court or judge, if the time during which such party
may be legally detained in custody has not expired, must remand
such party, if it appears that he is detained in custody:

1. By virtue of process Issued by any court or judge of the
United States, in a case where such court or judge has exclusive
Jurisdiction; or,

2. By virtue of the final judgment or decree of any competent
court of criminal jurisdiction, or of any process issued upon
Buch judgment or decree.

49 Cal. 1«2.

Grounds of discharge in certain cases.

1487. If it appears on the return of the writ that the prisoner
is in custody by virtue of process from any court of this state*
or judge or officer thereof, such prisoner may bo discharged
in any of the following cases, subject to the restrictions of the
last section:

1. When the jurisdiction of such court or officer has been

2. When the imprisonment was at first lawful, yet by some
act, omission, or event which has taken place afterwards, the
party has become entitled to a discharge;

3. When the process is defective in some matter of substance
required by law, rendering such process void;

4. When the process, though proper in form, has been issued
in a case not allowed by law;

5. When the person having the custody of the prisoner is
not the person allowed by law to detain him;

6. Where the process is not , authorized by any order, judg-
ment, or decree of any court, nor by any provision of law;

7. Where a party has been committed on a criminal charge
without reasonable or probable cause.

64 Cal. 156; 82 Cal. 246.

Not to be discharged for defect of form in warrant.

1488. If any person is committed to prison, or is in custody
of any officer on any criminal charge, by virtue of any warrant
of commitment of a justice of the peace, such person must not
be discharged on the ground of any mere defect of form in the
warrant of commitment.

85 Cal. 310; 92 Cal. 426.

Proceedings on defective warrant.

1489. If it appears to the court or judge, by affidavit or other-
wise, or upon the inspection of the process or warrant of com-
mitment, and such other papers in the proceedings as may be
shown to the court or judge, that the party is guilty of a
criminal offense, or ought not to be discharged, such court or
judge, although the charge is defective or unsubstantially set
forth in such process or warrant of commitment, must cause the
complainant or other necessary witnesses to be subpoenaed to
attend at such time as ordered, to testify before the court or

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743 WRIT OF HABEAS CORPUS. 1490-1496

judge; and upon the examination he may discharge such
prisoner, let him to bail, if the offense be bailable, or recommit
him to custody, as may be Just and legal.

49 Cal. 487.

Writ for purposes of bail.

1490. When a person is imprisoned or detained in custody
on any criminal charge, for want of bail, such person Is entitled
to a writ of habeas corpus for the purpose of giving bail, upon
averring that fact in his petition, without alleging that he is
illegally confined.

54 Cal. 108; 92 Cal. 188.

Judge may take bail.

1491. Any judge before whom a person who has been com-
mitted on a criminal charge may be brought on a writ of habeas
corpus, if the same is bailable, may take an undertaking of bail
from such person as in other Cases, and file the same in the
proper court.

04 Cai. 108; 92 Cal. I8V.

Judge, when to remand.

1492. If a party brought before the court or judge on the
return of the writ is not entitled to his discharge, and is not
bailed, where such bail Is allowable, the court or judge must
remand him to custody or place him under the restraint from
which he was taken, if the person under whose custody or
restraint he was is legally entitled thereto.

54 Cal. 103.

Person in illegal, may be committed to legal custody.

Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 68 of 77)