may insert in the order therefor a direction that the trial of the indictment be stayed Stay of proceedings. for a specified time, reasonably sufficient for the execution and return of the commission. 2157. SEC. 570. When the commission is ordered the defendant must serve upon Interrogatories. the district attorney, without delay, a copy of the interrogatories to be annexed there to, with two days' notice of the time at which they will be presented to the court or judge. torios. 2158. SEO. 571. The district attorney may in like manner serve upon the defendant Cross-interrogaor his counsel cross-interrogatories to be annexed to the commission with the like notice. 2159. SEO. 572. In the interrogatories, either party may insert any questions perti- Any pertinent nent to the issue. questions. 2160. SEO. 573. When the interrogatories and cross-interrogatories are presented to Allowance of interrogatories. the court or judge according to the notice given, the court or judge shall modify the questions so as to conform them to the rules of evidence, and shall indorse upon them his allowance and annex them to the commission. to execute 2161. SEO. 574. Unless the parties otherwise consent by an indorsement on the com- Directions mission, the court or judge shall indorse thereon a direction as to the manner in which commission. it shall be returned, and may in his discretion direct that it be returned by mail, or otherwise, addressed to the clerk of the court in which the action is pending, designating his name and the place where his office is kept. 2162. SEC. 575. The commissioner, unless otherwise specially directed, may execute Commission, the commission as follows: First. He shall publicly administer an oath to the witness that his answers given to the interrogatories shall be the truth, the whole truth, and nothing but the truth. Second. He shall cause the examination of the witness to be reduced to writing. Third. He shall write the answers of the witnesses as near as possible in the language he gives them, and shall read to them each answer as it is taken down, and correct or add to it until it is made conformable to what he declares is the truth. Fourth. If the witness decline answering a question, that fact, with the reason for which he declines answering it, as he gives it, must be stated. Fifth. If any papers or documents are produced before him and proved by the witness, they shall be annexed to his deposition and be subscribed by the witness, and certified by the commissioner. Sixth. The commissioner shall subscribe his name to each sheet of the deposition, and annex the deposition with the papers and documents proved by the witness to the commission, and must close up, seal, and address the same as directed on the commission. Seventh. If there be a direction on the commission to return it by mail, the commissioner shall immediately deposit it in the nearest post-office. If any other direction be made by the written consent of the parties or by the court or judge on the commission as to its return, he must comply with the direction. how executed. Copy of last section. Return of 2163. SEC. 576. A copy of the last section must be annexed to the commission. 2164. SEO. 577. If the commission and return be delivered by the commissioner to an agent he must deliver the same to the clerk to whom it is directed, or to the judge of commission. the court in which the indictment is pending, by whom it may be received and opened upon the agent making affidavit that he received it from the hand of the commissioner, and that it has not been opened or altered since he received it. 2165. SEC. 578. If the agent be dead, or from sickness or other casualty unable The same. personally to deliver the commission and return as prescribed in the last section, it may be received by the clerk or judge from any other person, upon his making an affidavit that he received it from the agent; that the agent is dead, or from sickness or other casualty unable to deliver it; that it has not been opened or altered since the person making the affidavit received it; and that he believes it has not been opened or altered since it came from the hand of the commissioner. 2166. SEC. 579. The clerk or judge receiving and opening the commission and return Filing return. must immediately file it with the affidavit mentioned in the last two sections, in the office of the clerk of the court in which the indictment is pending. 2167. SEC. 580. If the commission and return be transmitted by mail, the clerk to Return by mail. whom it is addressed must receive it from the post-office, and open and file it in his office, where it shall remain unless otherwise directed. 2168. SEO. 581. The commission and return shall be at all times open to the inspec Commission open to inspection. Reading depositions. Objections Insanity of defendant. Inquiry as to sanity. Stay of proceedings. Proceedings on trial. Charging jury. Defendant found sane. Defendant found insane. Exoneration of bail. Return to sanity. Expense of detaining defendant, tion of the parties, who shall be furnished by the clerk with copies of the same, or of 2169. SEO. 582. The depositions taken under the commission may be read in evi- CHAPTER III. INQUIRY INTO THE INSANITY OF THE DEFENDANT BEFORE TRIAL OR AFTER CONVICTION. 2170. SEO. 583. An act done by a person in a state of insanity cannot be punished as a public offense, nor can a person be tried, adjudged to punishment, or punished for a public offense, while he is insane. 2171. SEO. 584. When an indictment is called for trial, or upon conviction, the defendant is brought up for judgment, if a doubt shall arise as to the sanity of the defendant, the court shall order the question to be submitted to the regular jury, or may order a jury to be summoned as prescribed in section three hundred and forty-one, to inquire into the fact. 2172. SEO. 585. The trial of the indictment or the pronouncing of the judgment, as the case may be, shall be suspended until the question of insanity shall be determined by the verdict of the jury. 2173. SEO. 586. The trial of the question of insanity shall proceeed in the following order: First. The counsel for the defendant shall open the case and offer evidence in support of the allegation of insanity: Second. The counsel for the people shall open their case and offer evidence in support thereof: Third. The parties may then respectively offer rebutting testimony only unless the court, for good reason in furtherance of justice, permit them to offer evidence upon their original cause: Fourth. When the evidence is concluded, unless the case is submitted to the jury, on either or both sides, without argument, the counsel for the people must commence, and the defendant or his counsel may conclude the argument to the jury: Fifth. If the indictment be for an offense punishable with death, two counsels on Sixth. The court shall then charge the jury, if requested by either party. 2175. SEC. 588. If the jury find that the defendant is sane, the trial of the indict- 2176. SEO. 589. If the jury find the defendant is insane, the trial or judgment shall be suspended until he become sane, and the court, if it deem his discharge dangerous to the public peace or safety, may order that he be in the meantime committed by the sheriff to the custody of some proper person, and that upon his becoming sane he be redelivered by such person to the sheriff. 2177. SEC. 590. The commitment of the defendant, as mentioned in the last section, shall exonerate any bail he may have given, or shall entitle any person authorized to receive the property of the defendant to a return of any money he may have deposited instead of bail. 2178. SEO. 591. If the defendant be received by the person so appointed, he must be detained by him until he becomes sane. When he becomes sane, such person shall give notice to the sheriff and district attorney of the county of that fact. The sheriff shall thereupon, without delay, take the defendant from the custody of such person, and place him in proper custody until he be brought to trial or judgment as the case may be, or be otherwise legally discharged. 2179. SEO. 592. The expenses of placing the defendant in the custody of such proper person, of keeping and bringing him back, shall in the first instance be chargeable to the county in which the indictment was found; but the county may recover them from the estate of the defendant, if he have any, or from any relative, town, city, or county, bound to provide for and maintain him elsewhere. CHAPTER IV. DISMISSAL OF THE ACTION BEFORE OR AFTER INDICTMENT, FOR WANT OF PROSECUTION OR OTHERWISE. dismissed. 2180. SEO. 593. When a person has been held to answer for a public offense, if an Prosecution, indictment be not found against him at the next term of the court at which he is held when to be to answer, the court shall order the prosecution to be dismissed, unless good cause to the contrary be shown. dismissed. 2181. SEC. 594. If a defendant, indicted for a public offense, whose trial has not Indictment, been postponed upon his application, be not brought to trial at the next term of the when to be court at which the indictment is triable, after the same is found, the court shall order the indictment to be dismissed, unless good cause to the contrary be shown. action 2182. SEO. 595. If the defendant be not indicted or tried, as provided in the last Continuance of two sections, and sufficient reason therefor be shown, the court may order the action to be continued from term to term, and in the meantime may discharge the defendant from custody on his own recognizance of bail for his appearance to answer the charge at the time to which the action is continued. dismissal of 2183. SEC. 596. If the court direct the action to be dismissed, the defendant shall, Effect of if in custody, be discharged therefrom, or if admitted to bail, his bail shall be exon- prosecution. erated, or money deposited instead of bail, shall be refunded to him. dismissal. 2184. SEC. 597. The court may, either of its own motion or upon the application of Reasons of the district attorney, and in furtherance of justice, order any action or indictment to 6 Cal. 543. be dismissed; but in such case the reasons of the dismissal shall be set forth in the order, which must be entered on the minutes. 2185. SEC. 598. Neither the attorney general nor the district attorney shall here- Restrictions after discontinue or abandon a prosecution for a public offense, except as provided in upon officers. the last section. 2186. SEC. 599. An order for the dismissal of the action, as provided in this chap- Bar to future ter, shall be a bar to any other prosecution for the same offense, if it be a misde- prosecution. meanor, but it shall not be a bar if the offense be felony. CHAPTER V. ENTITLING AFFIDAVITS. 2187. SEC. 600. It shall not be necessary to entitle an affidavit or deposition in the Entitling action, whether taken before or after indictment, or upon an appeal; but if made affidavita without a title, or with an erroneous title, it shall be as valid and effectual for every purpose as if it were duly entitled, if it intelligibly refer to the proceeding, indictment, or appeal in which it is made. CHAPTER VI. ERRORS AND MISTAKES IN PLEADINGS AND OTHER PROCEEDINGS. invalidate. 2188. SEC. 601. Neither a departure from the form or mode prescribed by this act Errors not to in respect to any pleadings or proceedings, nor an error or mistake therein shall render the same invalid, unless it have actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right. CHAPTER VII. DISPOSAL OF PROPERTY, STOLEN OR EMBEZZLED. 2189. SEO. 602. When property alleged to have been stolen or embezzled shall Custody of come into the custody of a peace-officer, he shall hold the same subject to the order stolen property. of the magistrate, authorized by the next section to direct the disposal thereof. owner. 2190. SEC. 603. On satisfactory proof of the title of the owner of the property, Return of the magistrate to whom the information is laid, or who shall examine the charge Property to against the person accused of stealing or embezzling the property, may order it to be delivered to the owner, on his paying the reasonable and necessary expenses incurred in its preservation, to be certified by the magistrate. The order shall entitle the owner to demand and receive the property. The same. The same. Unclaimed property. Receipt for property taken from defendant. Complaint. Examination of complainant. Warrant of arrest. Form. Pleading and proceedings. Proviso. 2191. SEO. 604. If the property stolen or embezzled come into the custody of the magistrate, it shall 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. 2192. SEC. 605. If the property stolen or embezzled have not been delivered to the owner, the court before which a conviction is held for stealing or embezzling, may, on proof of his title, order it to be restored to the owner. 2193. SEC. 606. If the property stolen or embezzled be not claimed by the owner, before the expiration of six months from the conviction of a person for stealing or embezzling it, the magistrate or other officer having it in custody shall, on the payment of the necessary expenses incurred for its preservation, deliver it to the county treasurer, by whom it shall be sold, and the proceeds paid into the county treasury. 2194. SEC. 607. When money or such other property is taken from a defendant arrested upon a charge of a public offense, the officer taking it shall at the time give duplicate receipts therefor, specifying particularly the amount of money and the kind of property taken; one of which receipts he shall deliver to the defendant, and the other of which he shall forthwith file with the clerk of the court, to which the depo sitions and statement must be sent, as provided by section one hundred and seventysix. PART V. OF PROCEEDINGS IN JUSTICES', RECORDERS', AND MAYORS' Courts. 2195. SEC. 608. All proceedings and actions before a justice's, recorder's, or mayor's court, for a public offense, of which said courts have jurisdiction, shall be commenced by complaint setting forth the offense charged, with such particulars of time, place, person, and property, as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint. 2196. SEC. 609. When the complaint is laid before the justice, mayor, or recorder, of the commission of a public offense, of which the courts held by them have jurisdiction, he must examine on oath the complainant or prosecutor, and any witness he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them. 2197. SEC. 610. If the justice, mayor, or recorder, as the case may be, be satisfied therefrom that the offense complained of has been committed, he shall issue a warrant of arrest, which shall be substantially in the following form: "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, mayor, or recorder, 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 at (naming the place). "Witness my hand and seal, at this day of A. D. A. B." 2198. SEO. 611. On being arrested, the defendant may plead to the complaint or he may answer and deny the same. Such plea, answer, or denial, may be oral or in writing, and immediately thereafter the case shall be tried, unless, for good cause shown, an adjournment or change of venue shall be granted. If an adjournment or change of venue be granted, the defendant may be held to bail. If the defendant, at any time before the trial, apply for a change of the place of trial, and make it appear by affidavit 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 cause, by reason of prejudice or bias of such justice, the cause shall be transferred to another justice of the same or a neighboring township for trial. It shall be the duty of the justice ordering the change to require the defendant to appear before the justice to whom the transfer is made, on a day named for trial, also all witnesses, and to transmit to such justice a certified transcript of his docket, and all original papers in the cause. Should the defendant show to the satisfaction of the justice, by his own affidavit or otherwise, that he cannot have a fair and impartial trial, by reason of the prejudice of the citizens of the township, the cause shall be transferred to a justice of a neighboring township; provided, if it appear by the defendant's affidavit that the same prejudice exists in any other township or townships, the cause shall be transferred to some township where no such prejudice exists.(") [Amendment, approved March 8, 1860, 71. 2199. SEC. 612. The defendant must in all cases be personally present before the Presence of trial shall proceed. defendant. 2200. SEC. 613. A docket shall be kept by the justice, mayor, or recorder, or in the Docket. recorder's court, by the clerk of the court, if there be one, in which he shall enter each action, and the minutes of the proceedings of the court therein. 2201. SEC. 614. The defendant shall be entitled, if demanded by him, to a jury- Jury-trial. trial. The formation of the juries is provided for by special statute. 2202. SEC. 615. The same challenges may be taken by either party to the panel Challenge to of jurors, or to any individual juror, as may be taken on the trial of an indictment jurors. for a misdemeanor; but the challenge shall in all cases be tried by the court. 2203. SEC. 616. The court shall administer to the jury the following oath or affima- Oath to jurors. tion: "You do swear (or affirm, as the case may be) that you will well and truly try this issue between the people of the State of California, and A. B., the defendant, a true verdict give according to the evidence." 2204. SEC. 617. After the jury are sworn they must sit together, and hear the Public jury trial. proofs and allegations of the parties, which must be delivered in public, and in the presence of the defendant. law. retirement 2205. SEC. 618. The court shall decide all questions of law which may arise in the Questions of course of the trial; but shall give no charge with respect to matters of fact. 2206. SEC. 619. After hearing the proofs and allegations, the jury may decide in Decision or 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 it be to ask them whether they have agreed upon a verdict; and that you will return them into court when he [they] have so agreed." 2207. SEC. 620. The verdict of the jury shall, in all cases, be general. Verdict, general. 2208. SEC. 621. When the jury have agreed upon their verdict they shall deliver it Public. publicly to the court, who shall cause the same to be entered on the minutes. one or more. 2209. SEO. 622. When several defendants are tried together, if the jury cannot Verdict against 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. 2210. SEC. 623. The jury shall not be discharged after the cause is submitted to Jury not to be discharged. them, until they have agreed upon, and rendered their verdict, unless for good cause the court sooner discharge them. 2211. SEC. 624. If the jury be discharged, as provided in the last section, the court New trial. may proceed again to the trial, in the same manner as upon the first trial; and so on, until a verdict be rendered. 2212. SEC. 625. When the defendant pleads guilty, or is convicted, either by the Judgment. court or by a jury, the court shall render judgment thereon of fine and imprisonment, or both, as the case may require. Costs when prosecution 2213. SEC. 626. A judgment that the defendant pay a fine, may also direct that he Judgment be imprisoned until the fine be paid or satisfied. to pay fine. 2214. SEC. 627. When the defendant is acquitted, either by the court or by the Acquittal. jury, he shall 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 inalicious. 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 to the county within thirty days after the trial. 2215. SEC. 628. If the prosecutor do not pay the costs, or give security therefor, Judgment for as provided in the last section, the court may enter judgment against him for the costs. amount thereof, which may be enforced in all respects in the same manner as a judgment rendered in a civil action. 2216. SEC. 629. When a verdict is rendered, it shall be immediately entered upon Entry of verdict. the minutes. 2217. SEC. 630. After a plea or verdict of guilty, or after a verdict against the de- Time for fendant, on a plea of a former conviction or acquittal, the court shall appoint a time judginent. (*) Original section: SEC. 611. On being arrested the defendant may plead to the complaint, or he may answer or deny the same. Such plea, answer, or denial may be oral or in writing, and immediately there after the case shall be tried, unless for good cause shown, an adjournnent shall be granted. If an adjournment be granted, the defendant may be held to bail. |