Personal knowledge of juror. Separation of jury. Admonition on adjournment. Sickness of juror. Court to decide law. Jury to determine law and fact in libel. Questions of law and fact in other cases. Charge to jury. Written instructions. 6 Cal. 205. 18 Cal. 635. Court to indorse instructions. Retirement of jury. Defendant on bail may be committed. Jury-room. nected with the trial, and the officer shall return them into court without unnecessary delay, or at a specified time. 1979. SEC. 392. If a juror have any personal knowledge respecting a fact in a controversy in a case, he must disclose the same in open court during the trial. If during the retirement of the jury a juror declare any fact which could be evidence in the cause as of his own knowledge, the jury must return into court. In either of these cases the juror making the statement must be sworn as a witness, and examined in the presence of the parties. 1980. SEC. 393. The jurors sworn to try an indictment may at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or be kept in charge of a proper officer. The officers shall be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to them, nor speak to them themselves on any subject connected with the trial, and to return them into court at the next meeting thereof. 1981. SEC. 394. The jury shall also at each adjournment of the court, whether they be permitted to separate, or be kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves, or with any one else, on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them. 1982. SEC. 395. If before the conclusion of the trial a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case a new juror may be sworn, and the trial begin anew, or the jury may be discharged, and a new jury then or afterwards impanelled. 1983. SEC. 396. The court shall decide all questions of law which shall arise in the course of a trial. 1984. SEO. 397. On the trial of an indictment for libel the jury shall have the right to determine the law and the fact. 1985. SEC. 398. On the trial of an indictment for any other offense than libel, questions of law are to be decided by the court, saving the right of the defendant to except questions of fact by the jury. And although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court. 1986. SEC. 399. In charging the jury, the court shall state to them all such matters of law as it shall think necessary for their information in giving their verdict. 1987. SEC. 400. Either party may present to the court any written charge and request that it may be given. If the court think it correct and pertinent it shall be given, if not it shall be refused. 1988. SEC. 401. Upon each charge so presented and given or refused the court shall indorse its decision and shall sign it. If part be given and part refused the court shall distinguish, showing by the indorsement what part of the charge was given and what part refused. 1989. SEC. 402. After hearing the charge the jury may either decide in court or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to them, nor to speak to them themselves unless it be to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed. 1990. SEO. 403. Where a defendant having given bail appears for trial, the court may in its discretion at any time after his appearance for trial order him to be committed to the custody of the proper officer of the county to abide the judgment or further order of the court, and he shall be committed and held in custody accordingly. CHAPTER II. CONDUCT OF THE JURY AFTER THE CASE IS SUBMITTED TO THEM. 1991. SEO. 404. A room shall be provided by the board of supervisors of each county for the use of the jury upon their retirement for deliberation, with suitable furniture, fuel, lights, and stationery. If the board of supervisors neglect, the court may order the sheriff to do so, and the expenses incurred by him in carrying the order into effect, when certified by the court, shall be a county charge.(") [Amendment, approved April 3, 1863, 158. (") The orginal section was the same, with the exception that the words "court of sessions" were used instead of "board of supervisors." 1992. SEO. 405. While the jury are kept together either during the progress of the Food and lodging. trial or after their retirement for deliberation, they shall be provided by the sheriff at the expense of the county with suitable and sufficient food and lodging. 1993. SEC. 406. Upon retiring for deliberation, the jury may take with them all What papers jury may tako papers (except depositions) which have been received as evidence in the case, or copies out of such parts of public records or private documents given in evidence as ought not in the opinion of the court to be taken from the person having them in possession. 1994. SEC. 407. The jury may also take with them notes of the testimony or other Notes of testimony. proceedings on the trial taken by themselves, or any of them, but none taken by any other person. 1995. SEO. 408. After the jury have retired for deliberation, if there be any dis- Coming in for agreement between them as to any part of the testimony, or if they desire to be in1- instructions, formed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon being brought into court, the information required shall be given in the presence of or after notice to the district attorney and the defendant and his counsel. further 17 Cal. 166. 1996. SEC. 409. If after the retirement of the jury one of them be taken so sick as Juror taken sick. to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept for deliberation, the jury may be discharged. discharged except, &c. 1997. SEC. 410. Except as provided in the last section, the jury shall not be dis- Jury not to be charged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by consent of both parties entered upon the minutes, or unless at the expiration of such time as the court shall deem proper, it satisfactorily appear that there is no reasonable probability that the jury can agree. 1998. SEC. 411. In all cases where a jury are discharged, or prevented from giving Effect of a verdict by reason of any accident or other cause, except where the defendant is dis- discharge of jury. charged from the indictment during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term. open till verdiet 1999. SEC. 412. While the jury are absent, the court may adjourn from time to Court deemed time, as to other business, but it shall nevertheless be deemed to be open for every or discharge. purpose connected with the cause submitted to the jury, until a verdict be rendered or the jury discharged. 2000. SEC. 413. A final adjournment of the court discharges the jury. Final adjournment. CHAPTER III. THE VERDICT. 2001. SEC. 414. When a jury have agreed upon a verdict, they must be conducted Return of jury. into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest shall be discharged without giving a verdict. In such case the cause may be again tried at the same or another term. defendant. 2002. SEC. 415. If the indictment be for a felony, the defendant must, before the Appearance of verdict, appear in person. If it be for a misdemeanor, the verdict may be rendered in his absence. 2003. SEC. 416. If the jury appear, they shall be asked by the court or clerk Jury to be asked whether they have agreed upon their verdict, and if the foreman answer in the affirm- if agreed. ative, they shall on being required declare the same. 2004. SEO. 417. The jury may either render a verdict, or when they are in doubt Verdict, general or special. as to the legal effect of the facts proved, they may, except upon an indictment for libel, file a special verdict. 2005. SEC. 418. A general verdict upon a plea of not guilty, is either "guilty" or General verdict. "not guilty," which imports a conviction or acquittal on every material allegation in 6 Cal. 548. the indictment. Upon a plea of a former conviction or acquittal of the same offense, it is either "For the people " or "For the defendant." 2006. SEC. 419. A special verdict is that by which the jury find the facts only, Special verdict. 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. 2007. SEC. 420. The special verdict must be reduced to writing by the jury, or in In writing. their presence entered upon the minutes of the court, read to the jury, and agreed to by them before they are discharged. Form. Judgment on special verdict. When new trial may be ordered. Conviction of lesser offense. 5 Cal. 133. Verdict as to some defendants, Court may direct jury to reconsider verdict. Reconsideration of informal verdicts. Judgment on informal verdict. Jury may be polled. Recording verdict. Proceeding on verdict of acquittal. Proceeding on verdict of guilty. 2008. SEC. 421. The special verdict need not be in any particular form, but shall be sufficient if it present intelligibly the facts found by the jury. 2009. SEC. 422. The court shall give judgment upon the special verdict, as follows:First. If the plea be 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 as provided in section four hundred and twenty-four, under that indictment judgment shall be given accordingly. But if the facts found do not prove the defendant guilty of the offense charged, or of any offense of which he could be so convicted under the indictment, judgment of acquittal shall be given. Second. If the plea be a former conviction or acquittal of the same offense, the court shall give judgment of acquittal or conviction according as the facts prove or fail to prove the former conviction or acquittal. 2010. SEC. 423. 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 facts from the evidence as established to their satisfaction, the court shall order a new trial. 2011. SEC. 424, In all cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense charged. 2012. SEC. 425. On an indictment 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 a judgment shall be entered accordingly; and the case as to the rest may be tried by another jury. 2013. SEC. 426. Where 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 such 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. 2014. SEC. 427. If the jury render a verdict which is neither a general nor a special verdict, as defined in sections four hundred and eighteen and four hundred and nineteen, the court may direct them to reconsider it, and it shall not be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury, whether to render a general verdict or to find the facts specially and to leave the judgment to the court. 2015. SEC. 428. 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 shall be entered in the terms in which it is found, and the court shall give judgment of acquittal. But no judgment of conviction can be given unless the jury find expressly against the defendant upon the issue, or judgment be given against him on a special verdict. 2016. SEC. 429. When a verdict is rendered and before it is recorded the jury may be polled on the requirement of either party, in which case they shall be severally asked whether it be their verdict, and if any one answer in the negative the jury shall be sent out for further deliberation. 2017. SEC. 430. When the verdict is given and is such as the court may receive, the clerk must immediately record it in full on the minutes and must read it to the jury and inquire of them whether it be their verdict. If any juror disagree, the fact must be entered in the minutes and the jury again sent out; but if no disagreement be expressed the verdict is complete and the jury must be discharged from the case. 2018. SEC. 431. If judgment of acquittal be given on a general verdict, and the defendant be not detained for any other legal cause, he must be discharged as soon as the judgment is given, except that where the acquittal is a variance between the proof and the indictment, which may be obviated by a new indictment, the court may order his detention, to the end that a new indictment may be preferred in the same manner, and with like effect as provided in sections three hundred and eighty-seven and three hundred and eighty-eight. 2019. SEC. 432. If a general verdict be rendered against the defendant or a special verdict be given, he must be remanded, if in custody, or if on bail he may be committed to the proper officers of the county, to await the judgment of the court upon the verdict. If so committed, his bail shall be exonerated, or if money be deposited instead of bail, it shall be refunded to the defendant. TITLE VIII. OF THE PROCEEDINGS AFTER TRIAL AND BEFORE JUDGMENT. CHAPTER I. BILL OF EXCEPTIONS. 2020. SEO. 433. On the trial of an indictment, exceptions may be taken by the de- Grounds of exception. fendant to a decision of the court upon a matter of law in any of the following cases: First. In disallowing a challenge to the panel of the jury, or to an individual juror for an implied bias. Second. On admitting or rejecting witnesses or testimony, or in charging the triers on the trial of a challenge to a juror for actual bias. Third. In admitting or rejecting witnesses or 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. 2021. SEO. 434. The exceptions may be taken by the district attorney or other Exceptions on counsel for the people, to a decision of the court upon a matter of law in any of the behalf of the people. cases specified in the third subdivision of the preceding section. fur 2022. SEC. 435. A bill containing the exceptions must be settled and signed by the judge and filed with the clerk within ten days after the trial of the cause, unless ther time be granted by said judge or by a judge of the supreme court. 2023. SEC. 436. The bill of exceptions shall 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 shall upon the settlement of the bill, whether agreed to by the parties or not, strike out evidence and other matters not material to the questions to be raised. Bill of exceptions to be settled. 9 Cal. 421. 10 Cal 2024. SEC. 437. The bill of exceptions must be filed with the clerk of the court as To be filed. soon as it is signed by the judge. 2025. SEO. 438. When any written charge has been presented and given or refused, Written charge to form part of the question or questions presented in such charge need not be excepted to, nor em- record. bodied in a bill of exceptions, but the written charge itself, with the indorsement showing the action of the court, shall 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 is presented in a bill of exceptions. CHAPTER II. defined. 2026. SEO. 439. A new trial is a re-examination of the issue in the same court before New trial another jury, after a verdict has been given. It places the parties in the same condi- 4 Cal. 376. tion as if no trial had been had. All the testimony must be produced anew, and the 6 Cal. 456. former verdict cannot be used or referred to either in evidence or in argument. Second. When the jury has received any evidence out of court other than that resulting from a view as provided in section three hundred and ninety. First. When the trial has been had in his absence, if the indictment be for a 18 Cal. 699. felony. 2027. SEC. 440. When a verdict has been rendered against the defendant, the court Grounds for may, upon his application, set the same aside, and order a new trial, in the following 5 Cal. 72. cases only: new trial. 5 Cal. 275, 9 Cal. 298 21 Cal. 387. 22 Cal. 348. Third. When the jury has separated without leave of the court, after retiring to deliberate upon their verdict, or been guilty of any misconduct tending to prevent a fair and due consideration of the case. Fourth. 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. Fifth. 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. Sixth. When the verdict is contrary to law or evidence. Seventh. When new evidence is discovered, material to the defendant, 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 affidavits of the witnesses by whom such evidence is expected to be given, and if time is required 2 Cal. 484. Application for new trial, Motion in arrest of judgment defined. Arrest by court. When motion to be made. Effect of 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.() [Amendment, approved April 3, 1863, 158. 2028. SEC. 441. The application for a new trial must be made before the judgment is entered in the cause. CHAPTER III. ARREST OF JUDGMENT. 2029. SEC. 442. 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 mentioned in section two hundred and eighty-nine. 2080. SEC. 443. The court may also on its own view of these defects arrest the judgment without motion. 2031. SEO. 444. The motion must be made before or at the time when the defendant is called for judgment. 2032. SEC. 445. The effect of allowing a motion for an arrest of judgment is to allowing motion. place the defendant in the same situation in which he was before the indictment was found. When defendant may be recommitted. Appointing time for judgment. What time to be Presence of defendant. 9 Cal. 115. When defendant in custody. When on bail. 2033. SEC. 446. If from the evidence on the trial there is reason to believe the defendant guilty, and a new indictment can be framed upon which he may be convicted, the court may order him to be recommitted to the officers of the proper county, or admitted to bail anew to answer the new indictment. If the evidence show him guilty of another offense, he shall be committed or held thereon, and in neither case shall the verdict be a bar to another prosecution or indictment. But if no evidence appear sufficient to charge him with any offense, he shall if in custody be discharged, or if admitted to bail his bail shall be exonerated, or if money have been deposited instead of bail it shall be refunded to the defendant, and the arrest of judgment shall operate as an acquittal of the charge upon which the indictment was founded. TITLE IX. OF THE JUDGMENT AND EXECUTION. CHAPTER I. THE JUDGMENT. 2034. SEO. 447. After the plea or verdict of guilty, or after a verdict against the defendant, on a plea of a former conviction or acquittal, if the judgment be not arrested or a new trial granted, the court shall appoint a time for pronouncing judg ment. 2035. SEC. 448. The time appointed shall be at least two days after the verdict, if the court intend to remain in session so long; or if not, as remote a time as can reasonably be allowed. But in no case shall the judgment be rendered in less than six hours after the verdict. 2036. SEC. 449. For the purpose of judgment, if the conviction be for felony, the defendant must be personally present; if it be for a misdemeanor, judgment may be pronounced in his absence. 2037. SEC. 450. When the defendant is convicted of a felony, if he be in custody, the court may direct the officer in whose custody he is, to bring him before it for judgment, and the officer shall do so accordingly. 2038. SEC. 451. If the defendant have been discharged on bail, or have deposited money instead thereof, and do not appear for judgment when his personal appearance is necessary, the court, in addition to the forfeiture of the recognizance, or of the money deposited, may direct the clerk to issue a bench warrant for his arrest. 2039. SEC. 452. The clerk, on the application of the district attorney, may accord (4) Original section: SEC. 440. The court in which a new trial is had upon the issue of facts, has power to grant a new trial where a verdict has been rendered against the defendant upon his application in the following cases only: 1st. When the trial has been had in his absence, if the indictment be for felony. 2d. When the jury has received any evidence out of court other than that resulting from a view as provided in section three hundred and ninety. 3d. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct, tending to prevent a fair and due consideration of the case. 4th. When the verdict has been decided by lot or by any means other than a fair expression of opinion on the part of the jurors. 5th. When the court has misdirected the jury in a matter of law. 6th. When the verdict is contrary to law or evidence. But no more than two new trials shall be granted for this cause alone. |