ingly at any time after the order, whether the court be sitting or not, issue a bench Bench warrant, warrant into one or more counties. 2040. SEO. 453. The bench warrant shall be substantially in the following form:- Form. marshal, or policeman, in this State : A. B., having been, on the of the crime of duly convicted in the county court, or district court (as the case may be), of the Given under my hand, with the seal of said court, affixed, this A. D. eighteen hundred and [SEAL] day of By order of the court, E. F., Clerk.() [Amendment, approved April 3, 1863, 158; took effect January 1, 1864. served. 2041. SEC. 454. The bench warrant may be served in any county, in the same man- Warrant, how ner as a warrant of arrest, except that when served in another county it need not be indorsed by a magistrate of that county. 2042. SEC. 455. Whether the bench warrant be served in the county in which it Arrest of defendant. was issued, or in another county, the officer shall arrest the defendant and bring him before the court, or commit him to the officer mentioned in the warrant, according to the command thereof. appears. 2043. SEC. 456. When the defendant appears for judgment, he shall be informed by Proceedings the court, or by the clerk under its direction, of the nature of the indictment, and of where defendant his plea, and the verdict, if any there are, and shall be asked whether he have any legal cause to show why judgment should not be pronounced against him. 2044. SEC. 457. He may show for cause against the judgment: First. That he is insane, and if in the opinion of the court there be reasonable ground for believing him to be insane, the question of his insanity shall be tried, as provided in sections five hundred and eighty-four to five hundred and eighty-seven, both inclusive. If upon the trial of that question the jury find that he is of sound mind, judgment shall be pronounced; and if they find him insane, he shall be committed to the custody of some proper and suitable person until he become sane, and when notice is given of that fact, as provided in section five hundred and ninety-one, he shall be brought before the court for judgment: Second. That he has good cause to offer, either in arrest of judgment, 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 the motion in arrest of judgment, or for a new trial. Showing cause against judgment. 2045. SEC. 458. If no sufficient cause be alleged, or appear to the court why judg- Judgment. ment should not be pronounced, it shall thereupon be rendered. several offenses. 2046. SEC. 459. If the defendant have been convicted of two or more offenses, be- Judgment for fore judgment on either, the judgment may be that the imprisonment upon any one 22 Cal. 185. may commence at the expiration of the imprisonment upon any other of the offenses. fine. 2047. SEC. 460. A judgment that the defendant pay a fine may also direct that he Judgment for be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, 7Cal. 208. which shall not exceed one day for every two dollars of the fine, or in that proportion.() [Amendment, approved April 2, 1857, 164. 2048. SEC. 461. A judgment that the defendant shall pay a fine shall constitute & Fines liens, lien in like manner as a judgment for money rendered in a civil action. 2049. SEC. 462. When judgment upon a conviction is rendered, the clerk shall enter Entry of the same in the minutes, stating briefly the offense for which the conviction had been judgment, had, and shall within five days annex together and file the following papers, which shall constitute the record of the action: First. A copy of the minutes of any challenge which may have been interposed by the defendant to the panel of the grand jury, or to any individual grand juror, and the proceedings thereon: Second. The indictment and a copy of the minutes of the plea of [or] demurrer : (*) The original section differed from the amendment, only in using the words "court of sessions" instead of "county court." () The original section, instead of the words "one day for every two dollars," read "ten days for every hundred dollars." Fifth. A copy of the minutes of the judgment: Sixth. The bill of exceptions, if there be one: Seventh. The written charges asked of the court, if there be any: CHAPTER II. Authority for execution. Execution on fine. On fine and imprisonment. Death-warrant. Statement of conviction to governor. Opinion of supreme court and attorney general. Suspension of capital execution. Inquiry into sanity of defendant. Witnesses. Certificate of inquisition. Effect of inquisition. Proceedings on insanity. Inquiry into pregnancy. Effect of inquiry. THE EXECUTION. 2050. SEO. 463. Where a judgment has been pronounced, a certified copy of the entry thereof in the minutes shall be forthwith furnished to the officers whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require the execution thereof except where judgment of death is rendered. 2051. SEC. 464. If the judgment be for a fine alone, execution may be issued thereon as on a judgment in a civil action. 2052. SEC. 465. If the judgment be imprisonment or a fine and imprisonment until it be satisfied, the defendant shall be forthwith committed to the custody of the proper officer, and by him detained until the judgment be complied with. 2053. SEC. 466. When the judgment of death is rendered, a warrant, signed by the judge and attested by the clerk under the seal of the court, shall be drawn and delivered to the sheriff; it shall state the conviction and judgment, and appoint a day on which the judgment shall be executed, which shall not be less than thirty nor more than sixty days from the time of the judgment. 2054. SEC. 467. The judge of a court at which a conviction requiring judgment of death shall have been had, shall immediately after the conviction transmit to the governor, by mail or otherwise, a statement of the conviction and judgment and of the testimony given at the trial. 2055. SEC. 468. The governor may thereupon require the opinion of the justices of the supreme court and the attorney general, or of any of them, upon the statement so furnished. 2056. SEC. 469. No judge, court, or officer other than the governor can suspend the execution of a judgment of death, except the sheriff as provided in the seven succeeding sections, unless an appeal be taken. When an appeal has been taken from a judgment of death, the appellate court and any judge thereof in vacation may suspend the execution until the appeal is heard and determined. 2057. SEC. 470. If after judgment of death there be good reason to suppose that the defendant has become insane, the sheriff of the county, with the concurrence of the judge of the court by which the judgment was rendered, may summon a jury of twelve persons to inquire into the supposed insanity, and shall give immediate notice thereof to the district attorney of the county. 2058. SEC. 471. The district attorney shall 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 jury, and disobedience thereto may be punished in like manner as disobedience to process issued by that court. 2059. SEC. 472. A certificate of the inquisition shall be signed by the jurors and the sheriff, and filed with the clerk of the court in which the conviction was had. 2060. SEC. 473. If it be found by the inquisition that the defendant is sane, the sheriff shall execute the judgment; but if it be found that he is insane, the sheriff shall suspend the execution of the judgment until he receive a warrant from the governor or from the judge of the court by which the judgment was rendered, directing the execution of the judgment. 2061. SEC. 474. If the inquisition find that the defendant is insane, the sheriff shall immediately transmit the same to the governor, who may, when the defendant becomes sane, issue a warrant appointing a day for the execution of the judgment. 2062. SEC. 475. If there be good reason to suppose that a female, on whom a judgment of death is rendered, is pregnant, the sheriff of the county, with the concurrence of the judge of the court by which the judgment was rendered, may summon a jury of three physicians to inquire into the supposed pregnancy; immediate notice thereof shall be given to the district attorney of the county, and the provisions of sections four hundred and seventy-one and four hundred and seventy-two shall govern the proceedings upon the inquisition. 2063. SEC. 476. If it be found by the inquisition that such female is not pregnant, the sheriff shall execute the judgment. If it be found that she is pregnant, the sheriff shall suspend the execution of the judgment, and transmit the inquisition to the gov ernor. execution. 2064. SEO. 477. When the governor is satisfied that such female is no longer preg- Warrant for nant, he may issue his warrant appointing a day for the execution of the judgment. 2065. SEC. 478. If for any reason a judgment of death shall not have been exe- Proceedings cuted, and the same remain in force, the court in which the conviction was had, the application of the district attorney, shall order the defendant to be brought before executed. it, or if he be at large a warrant for his apprehension may be issued. on when death execution. 2066. SEC. 479. Upon the defendant being brought before the court it shall inquire Order for into the facts, and if no legal reason exist against the execution of the judgment, shall make an order that the sheriff of the proper county execute the judgment at the time specified therein, and the sheriff shall execute the judgment accordingly. 2067. SEC. 480. The punishment of death shall be inflicted by hanging the defend- Death penalty ant by the neck until he be dead. TITLE X. OF APPEALS. CHAPTER I. APPEALS WHEN ALLOWOD, AND HOW TAKEN. how inflicted. 5 Cal. 517. 2068. SEC. 481. The party aggrieved in a criminal action, whether that party be Appeals. the people or the defendant, may appeal as follows: First. To the county court, from a final judgment of a justice's, recorder's, or other 12 Cal. 424 inferior municipal court. Second. To the supreme court, from a final judgment of the district court, or county court, in all criminal cases amounting to a felony, on questions of law alone; also, from an order of the district court, or county court, granting or refusing a new trial, or which affects a substantial right in a criminal case amounting to felony, on questions of law alone.() [Amendment, approved April 3, 1863, 158; took effect January 1, 1864. 2069. SEC. 482. The appeal to the supreme court can be taken on questions of law Questions on alone. The appeal to the county court can be taken on both questions of law and appeal. 10 Cal. 312. fact.() [Amendment, approved April 22, 1858, 217. [The above amendment, by the sixth section of the amendatory and supplemental act of which it forms a part, is declared not to apply to the police judge's court of San Francisco. For proceedings in cases of appeals from that court and appeals to the county court in general, see SUPPLEMENTAL ACTS, post, 2285.] See 2070. SEC. 483. The party appealing shall be known as the appellant, and the ad- Designation of parties. verse party as the respondent. 2071. SEC. 484. Upon the appeal, any decision of the court in an intermediate What may be order or proceeding, forming a part of the record, may be revised. revised. 2072. SEC. 485. An appeal must be taken within one year after the judgment was Limitation of rendered. appeal. 2073. SEO. 486. An appeal must be taken by the service of a notice in writing on Notice of appeal. the clerk of the court in which the action was tried, stating that appellant appeals from the judgment. defendant. 2074. SEC. 487. If the appeal be taken by the defendant, a similar notice must be Appeal by served on the district attorney of the county in which the judgment was rendered. 2075. SEC. 488. If it be taken by the people, a similar notice must be served upon Appeal by the defendant, if he be a resident of the county; or if not, on the counsel, if any, people. who appeared for him on trial, if he be living within the county. If such service, after due diligence, cannot be made, the appellate court, upon proof thereof, shall make an order for the publication of due notice in some newspaper, and for such time as it may deem proper. () The original section provided for appeals to the court of sessions in the first subdivision, and, by an additional subdivision, for appeals from the court of sessions to the district courts. The supreme court, however, decided that both subdivisions were unconstitutional, as neither the court of sessions nor the district court could entertain appeals. Subsequently, by act approved April 22, 1858, 217, the original section was amended so as to read as follows: SEC 481. The party aggrieved in a criminal action, whether that party be the people or the defendant, may appeal as follows: First, To the county court, from a final judgment of a justice's, recorder's or mayor's court, or of the police judge's () The original section included appeals "to the district When perfected. Effect of appeal. Not to stay execution. Proceedings on appeal. Proviso. Dismissal of appeal for irregularity. Or for want of a return. 2076. SEC. 489. At the expiration of the time appointed for the publication, on filing an affidavit of the publication, the appeal shall be deemed perfected. 2077. SEC. 490. An appeal taken by the people shall in no case stay or affect the operation of a judgment in favor of the defendant, until judgment is reversed. 2078. SEC. 491. No appeal from a judgment of conviction, unless it be one imposing a fine only, shall stay the execution of the judgment, but the defendant, if in custody, shall remain in custody to abide the judgment upon the appeal, unless admitted to bail, as prescribed in section five hundred and fourteenth. 2079. SEC. 492. Upon the appeal being taken, the clerk with whom the notice of appeal is filed, must, within ten days thereafter, without charge, transmit to the clerk of the supreme court a copy of the notice of appeal, and of the record, and, upon the receipt of the record, it shall be the duty of the clerk of the supreme court to file said record, and perform the same service as in civil cases, without demanding his fees therefor; said fees, in case of a reversal of the judgment and ultimate acquittal of the defendant, to be a charge against the State, and, in case of an affirmance of the judgment appealed from, to be a charge against the defendant, and collected in the same manner as judgment in civil cases; provided, however, that in case of the insolvency of the defendant, and his inability to pay said costs, then and in that event they shall become a charge against the State.() [Amendment, approved May 14, 1862, 536. CHAPTER II. DISMISSING AN APPEAL FOR IRREGULARITY. 2080. SEO. 493. If the appeal be irregular in any substantial particular, but not otherwise, the appellate court may, on any day in term on motion of the respondent upon five days' notice, with copies of the papers upon which the motion is founded, order the same to be dismissed. 2081. SEO. 494. The court may also, upon like motion, dismiss the appeal, if the return be not made as provided in section four hundred and ninety-two, unless for good cause it enlarge the time for that purpose. CHAPTER III. Appeals, when determined. Judgment, how given. Arguments of counsel. Presence of defendant. ARGUMENT OF THE APPEAL. 2082. SEO. 495. All appeals in criminal cases shall be tried and determined at the first term of the appellate court after the record is filed. 2083. SEC. 496. Judgment of affirmance may be granted without argument, if the appellant fail to appear. But judgment of reversal can only be given upon argument, though the respondent fail to appear. 2084. SEC. 497. Upon the argument of the appeal, if the offense be punishable with death, two counsel shall 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.() [Amendment, approved May 15, 1854, 169. 2085. SEC. 498. The defendant need not appear in the appellate court, except when a new trial has been granted in the county court, and his personal presence is necessary for the purpose of identification.() [Amendment, approved April 3, 1863, 158; took effect January 1, 1864. Technical errors. Judgment on appeal. New trial. Reversal of judginent CHAPTER IV. JUDGMENT UPON APPEAL. 2086. SEO. 499. After hearing the appeal, the court shall give judgment without regard to technical error or defect, which does not affect the substantial rights of the parties. 2087. SEO. 500. The appellate court may reverse, affirm, or modify the judgment appealed from, and may, if necessary or proper, order a new trial. 2088. SEC. 501. 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. 2089. SEO. 502. If a judgment against the defendant be reversed, without ordering a new trial, the appellate court shall direct, if he be in custody, that he be discharged (*) The original section consisted only of the above language down to and including the word "record," where it first occurs in the amendment. () The original section used the words "two counsels" instead of "two counsel," and had the following additional sen tence: "The counsel for the defendant shall be entitled to the closing argument." (e) The original section merely provided that, "The defend. ant need not appear in the appellate court.' therefrom, or if he be admitted to bail, that his bail be exonerated, or if money be deposited instead of bail, that it be refunded to the defendant. 2090. SEC. 503. On a judgment of affirmance against the defendant, the original Judgment of judgment shall be carried into execution, as the appellate court may direct. affirmance. 2091. SEC. 504. When the judgment of the appellate court is given, it shall be en- Remittitur. tered in the minutes, and a certified copy of the entry shall be forthwith remitted to the clerk of the court from which the appeal was taken. 2092. SEC. 505. The papers returned to the appellate court shall there remain of Papers not to be record, and shall not be remitted to the court below. remitted. 2093. SEC. 506. After the certificate of judgment has been remitted, as provided in When jurisdic section five hundred and fourth, the appellate court shall have no further jurisdiction tion ceases. of the appeal, or of the proceedings thereon, and all orders which may be necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted. TITLE XI. OF BAIL. CHAPTER I. IN WHAT CASES THE DEFENDANT MAY BE ADMITTED TO BAIL. bail defined. 2094. SEC. 507. Admission to bail is the order of a competent court or magistrate, Admission to that the defendant be discharged from actual custody upon the taking of bail. defined. 2095. SEC. 508. The taking of bail consists in the acceptance by a competent court Taking of bail or magistrate, of the recognizance of sufficient bail for the appearance of the defendant, according to the terms of the recognizance, or that the bail will pay to the people of this State a specified sum. 2096. Sec. 509. A person charged with an offense may be admitted to bail, before Bail of right. conviction, as a matter of right, in all cases except as specified in section five hundred 19 Cal. 589. and ten.() [Amendment, approved April 2, 1863, 151. 2097. SEC. 510. No person shall be admitted to bail where he is charged with an When not. offense punishable with death, when the proof is evident or the presumption great. where bail 2098. SEC. 511. When the admission to bail is a matter of discretion, the court or Proceedings officer by whom it may be ordered, shall require such notice of the application there- discretionary. for as he may deem reasonable to be given to the district attorney of the county where the examination is had. 2099. SEC. 512. After conviction of an offense not punishable with death, a defend- Bail on appeal. ant who has appealed may be admitted to bail: First. As a matter of right where the appeal is from a judgment imposing a fine only. Second. A matter of discretion in all other cases. 2100. SEC. 513. Before conviction a defendant may be admitted to bail: First. For his appearance before the magistrate, on the examination of the charge before being held to answer. Before Second. To appear at the court to which the magistrate is required, by section one hundred and seventy-six, to return the depositions and statement upon the defendant being held to answer after examination. Third. After indictment, either before the bench warrant issued for his arrest, or upon any order of the court committing or enlarging the amount of bail, or upon his being surrendered by his bail to answer the indictment in the court in which it is found, or to which it may be sent or removed for trial. 2101. SEC. 514. After conviction and upon an appeal the defendant may be admit- On appeal. ted to bail as follows: First. If the appeal be from a judgment imposing a fine only on the recognizance of bail that he will pay the same or such part of it as the appellate court my direct, if the judgment be affirmed or modified or the appeal be dismissed. Second. If judgment of imprisonment have been given that he will surrender himself in execution of the judgment, upon its being confirmed or modified, or upon the appeal being dismissed. 20 Cal. 529. cretion in all cases where the punishment is death. Second, as |