4. If the offense so attempted is punishable by imprisonment and by a fine, the offender convicted of such attempt may be punished by both imprisonment and fine, not exceeding one-half the longest term of imprisonment and onehalf the largest fine which may be imposed upon a conviction for the offense so attempted. [C. L. § 4744*.

Cal. Pen. C. 2 664.

When agreement to commit a crime is a conspiracy, 22 4156-4158.

Petitioner was sentenced to imprisonment for twelve years for an attempt to commit murder; held, that under section 4744, C. L. 1888, providing that a person attempting to commit a crime may be sentenced to imprisonment not exceeding half of the longest term for which he might have been

inprisoned had he committed the crime, the petitioner might be sentenced for twelve years, although it was uncertain that he would have lived twentyfour years had he committed the crime and been sentenced for life. In re De Camp, U.; 49 P. 823. Attempts to murder otherwise than by poisoning or assault are included in the general description of attempted crimes defined in section 4744, C. L. 1888. Id.

4497. Failure of attempt but commission of other crime. The last two sections do not protect a person who, in attempting unsuccessfully to commit a crime, accomplishes the commission of another and different crime, whether greater or less in guilt, from suffering the punishment prescribed by law for the crime committed. [C. L. § 4745.

Cal. Pen. C. 2665.

4498. Conviction of two or more crimes. Terms. When any per son is convicted of two or more crimes before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction, must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be. [C. L. $4746.

Cal. Pen. C. 689.

4499. When term of imprisonment begins. Temporary release. The term of imprisonment fixed by the judgment in a criminal action commences to run only upon the actual delivery of the defendant at the place of imprisonment, and if thereafter, during such term, the defendant by any legal means is temporarily released from such imprisonment and subsequently returned thereto. the time during which he was at large must not be computed as part of such term. [C. L. § 4747.

Cal. Pen. C. 670.

Delivery of defendant after judgment, ?? 4926, 4927.

4500. Penalty when maximum imprisonment not fixed. Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years and no limit to the duration of such imprisonment is declared, the court authorized to pronounce judgment upon such conviction, may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than that prescribed. [C. L. § 4748.

Cal. Pen. C. ? 671.

Court to determine and impose punishment, 22 4058, 4059.

4501. Civil rights suspended by term less than life. A sentence of imprisonment in the state prison for any term less than for life, suspends all civil rights of the person so sentenced during such imprisonment and forfeits all private trusts and all public offices, authority, or power. [C. L. § 4749*.

Cal. Pen. C. 673*.

4502. Prisoner for life thereafter deemed civilly dead. A person sentenced to imprisonment in the state prison for life is thereafter deemed civilly dead. [C. L. § 4750.

Cal. Pen. C. 674.

4503. Two preceding sections qualified. The provisions of the two preceding sections must not be construed to render the persons therein mentioned

incompetent as witnesses upon the trial of a criminal action or proceeding, or incapable of making and acknowledging a sale or conveyance of property, or to make a last will and testament or to do such other acts as are permitted by law. [C. L. § 4751.

Cal. Pen. C. 675*.

4504. Person of convict under protection of law. The person of a convict sentenced to imprisonment in the state prison is under the protection of the law, and any injury to his person, not authorized by law, is punishable in the same manner as if he were not convicted or sentenced. [C. L. § 4752.

Cal. Pen. C. 676.

Persons imprisoned not to be treated with unnec

essary rigor, Con. art. 1, sec. 9. Inhumanity to prisoner, 22 4141, 4143.

4505. No forfeiture unless expressly provided. No conviction of any person for crime works any forfeiture of any property, except in cases in which a forfeiture is expressly imposed by law, and all forfeitures to this state in the nature of a deodand, or where any person shall flee from justice, are abolished. [C. L. § 4753. Bill of attainder forbidden, Con. art. 1, sec. 18.

Cal. Pen. C. 677.

TITLE 76.

CODE OF CRIMINAL PROCEDURE.

CHAPTER 1.

PRELIMINARY PROVISIONS.

4506. Name of title. This title shall be known as the Code of Criminal Procedure.

4507. Criminal procedure shall be as herein prescribed. The procedure in criminal cases in the courts of this state shall be as prescribed in this code. [C. L. § 4781.

Prosecutions pending when repeal takes effect to be conformed to provisions of revised statutes, as far as consistent, 2486. No part of revised stat

utes retroactive, ? 2490. No ex post facto law shall be passed, Con. art. 1, sec. 18.

4508. Legal conviction must precede punishment.

No person

shall be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof. [C. L. § 4782.

Cal. Pen. C. 2 681.

No person shall be deprived of life or liberty without due process of law, Con. art. 1, sec. 7.

4509. Prosecution by information or indictment. Other prosecutions. Every public offense must be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived by the accused with the consent of the state, or by indictment, with or without such examination and commitment, except:

1. Where proceedings shall be had for the removal of a civil officer of the state, of a political subdivision thereof, of a municipality, or of a school district.

2. Offenses arising in the militia when in actual service, and in the land and naval forces in time of war or public danger, or which the state may keep, with the consent of congress, in time of peace.

3. Offenses triable in justices' and police courts. [C. L. § 4783*.

Cal. Pen. C. 3 682*.

Prosecution by information or indictment after examination and commitment, or waiver, Con. art. 1, sec. 13. Removal of civil officer, Con. art. 6, sec.

21; 4565-4580. Powers of courts-martial not affected by penal code, 4057. Powers of courtsmartial, 1481–1490.

4510. Criminal action defined. The proceeding by which a person charged with a public offense is accused and brought to trial and punishment, is known as a criminal action.

Cal. Pen. C. 2683.

4511.

[C. L. § 4784.

Prosecutions to be in the name of the state. A criminal action shall be prosecuted in the name of the state of Utah, as a party, against the person charged with the offense. [C. L. § 4785.

Cal. Pen. C. ? 684*.

by the authority of "The State of Utah," Con.

The party prose[C. L.

All prosecutions to be conducted in the name and art. 8, sec. 18. 4512. Party prosecuted known as defendant. cuted in a criminal action is designated in this code as the defendant. § 4786.

Cal. Pen. C. 2685.

4513. Rights of the defendant. In criminal prosecutions the defendant shall be entitled:

1.

To appear and defend in person and by counsel.

2. To demand the nature and cause of the accusation against him, and to have a copy thereof.

3. To testify in his own behalf.

4. To be confronted by the witnesses against him, except that where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer, in the presence of the defendant, who has, either in person or by counsel, cross-examined, or has had an opportunity to cross-examine, the witness, or where the testimony of a witness on the part of the state, who is unable to give security for his appearance, has been taken conditionally in like manner in the presence of the defendant, who has, either in person or by counsel, cross-examined, or has had an opportunity to cross-examine, the witness, the deposition of such witness may be read, upon it being satisfactorily shown to the court that he is dead or insane, or cannot, with due diligence, be found within the state.

5. To have compulsory process to compel the attendance of witnesses in his own behalf.

6. To have a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

[C. L. § 4787*.

7. To the right of appeal in all cases. Cal. Pen. C. 686*. quent trial, 2 5013. Constitutional rights, Con. art. When reported testimony may be used on subse- 1, secs. 7-13.

4514. Defendant not compelled to advance fees. In no instance shall any accused person, before final judgment, be compelled to advance money or fees to secure the rights herein guaranteed.

Constitutional provision, Con. art. 1, sec. 12.

4515. Defendant need not testify. Husband or wife as witness. Twice in jeopardy. The accused shall not be compelled to give evidence against himself; a wife shall not be compelled to testify against her husband, nor a husband against his wife, nor shall any person be twice put in jeopardy for the same offense. [C. L. SS 4788*, 4789*.

Cal. Pen. C. 22 687*, 688*.

Refusal of accused to testify not to prejudice him, 5015. Husband or wife not competent as witness for or against each other without consent, 5014. In civil action, 3414. Defendant as a witness,

examination, 5015. Constitutional provisions, Con. art. 1, sec. 12. Acquittal or conviction a bar, 224488, 4490, 4794, 4795. What acquittal not a bar, 4793.

4516. No person convicted except on verdict or judgment. No person shall be convicted of a public offense unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon a judgment against him upon a demurrer when he refuses to plead, or upon a judgment of a court for a public offense not amounting to felony, a jury having been waived. [C. L. § 4790.

Cal. Pen. C. ? 689*.

Waiver of jury in criminal case not amounting to felony, 4810. Judgment on refusal to plead after

demurrer overruled, 4786. Due process of law, Con. art. 1, sec. 7.

CHAPTER 2.

LAWFUL RESISTANCE.

4517. Who may make lawful resistance. Lawful resistance to the commission of a public offense may be made:

1. By the party about to be injured. 2. By other parties. [C. L. § 4791. Cal. Pen. C. Z 692.

Justifiable homicide, 22 4167, 4168.