committed amounts only to manslaughter, or that the defendant was justifiable

or excusable. [C. L. § 5044.

dissenting. People v. Tidwell, 4 U. 506; 12 P. 61. People v. Callaghan, 4 U. 49; 6 P. 49.

The court having charged that if from all of the evidence, including that as to an alibi, the jury had a reasonable doubt of defendant's guilt, they should acquit him, it was not erroneous to charge that "if the prosecution made out such a case by its proof as would sustain a verdict of guilty, then the burden is upon the defendant to establish an alibi by a preponderance of the evidence." People v. Kessler, 13 U. 69; 44 P. 97. But see People v. Tracy, 1 U. 343. See "Burden of proof," 5012.

4857. Forgery. Proof of corporate existence. Expert testimony. Upon a trial for forging any bill or note purporting to be the bill or note of an incorporated company or bank, or for passing, or attempting to pass, or having in possession with intent to pass, any such forged bill or note, it shall not be necessary to prove the incorporation of such bank or company by the charter or act of incorporation, but it may be proved by general reputation, and persons of skill shall be competent witnesses to prove that such bill or note shall have been forged or counterfeited. [C. L. § 5045.

Cal. Pen. C. ? 1107.

Forgery and counterfeiting, ?? 4343-4354. 4858. Abortion, etc. Testimony of the woman not sufficient. Upon a trial for procuring or attempting to procure an abortion, or aiding or assisting therein, or for inveigling, enticing, or taking away any female of previous chaste character, for the purpose of prostitution, or aiding or assisting therein, the defendant shall not be convicted upon the testimony of the woman upon or with whom the offense shall have been committed, unless she is corroborated by other evidence. [C. L. § 5046.

Cal. Pen. C. 1108*.

Abortion, 22 4226, 4227. Abduction, etc., for purposes of prostitution, ?? 4222, 4223, 4591.

4859. Proof of corporate existence, etc., generally. If upon a trial or proceeding in a criminal case, the existence, constitution, or powers of any corporation shall become material, or be in any way drawn in question, it is not necessary to produce a certified copy of the articles or acts of incorporation, but the same may be proved by general reputation, or by the printed statutes of the state, or government or country by which such corporation was created. Mont. Pen. C. 2 2086.

4860. Lottery tickets, etc. Proof. Upon a trial for violation of any of the provisions of chapter thirty-two of the penal code, it shall not be necessary to prove the existence of any lottery in which any lottery ticket shall purport to have been issued, nor, to prove the actual signing of any such ticket or share, or pretended ticket or share of any pretended lottery, nor, that any lottery ticket, share, or interest was signed or issued by the authority of any manager, or, of any person assuming to have authority as manager; but in all cases proof of the sale, furnishing, bartering, or procuring of any ticket, share, or interest therein, or of any instrument purporting to be a ticket, or part or share of any such ticket, shall be evidence that such share or interest was signed and issued according to the purport thereof. [C. L. § 5047.

Cal. Pen. C. 1109.

Lotteries, ?? 4253-4260.

4861. False pretenses. Proof. Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property or valuable thing, the defendant shall not be convicted if the false pretense shall have been expressed in language, unaccompanied by a false token or writing, unless the pretense or some note or memorandum thereof be in writing, subscribed by or in the handwriting of the defendant, or unless the pretense be proved by the testimony of two witnesses or that of one

witness and corroborating circumstances; but this section shall not apply to a prosecution for falsely representing or personating another, and, in such assumed character, marrying, or receiving any money or property. [C. L. § 5048.

Cal. Pen. C. 1110.

False pretenses and cheats, ¿? 4393-4401.

4862. Conviction on testimony of accomplice. Corroboration. A conviction shall not be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof. [C. L. § 5049.

Cal. Pen. C. 1111.

Accessory after the fact is not an accomplice hereunder, and therefore his testimony need not be corroborated as that of an accomplice. People v. Chadwick, 7 U. 134; 25 P. 737.

It is not necessary that the testimony of an accomplice should be corroborated in every circumstance that he details in evidence. People v. Lee, 2 U. 441.

It is not error for the court to charge the jury in respect to the testimony of accomplices, "That were such parties unworthy of belief, the law would not allow them to go upon the witness stand." Id.

A witness in a criminal prosecution is not incompetent on the ground that he is an accomplice with the prisoner on trial in the particular crime which is the subject of the indictment, and if the testimony of such witness is believed by the jury, the prisoner may be legally convicted upon it. Id.

Corroboration in adultery case held sufficient. U. S. v. Kershaw, 5 U. 618; 19 P. 194.

In bigamy or polygamy there is no such thing as an accomplice, and the defendant can be convicted on the testimony of the alleged second wife alone. U. S. v. Miles, 2 U. 19. Same case, 103 U. S. 304.

4863. Mistake in charging the offense. Discharge or new prosecution. When it appears, at any time before verdict or judgment, that a mistake has been made in charging the proper offense, the defendant must not be discharged, if there appears good cause to detain him in custody; but the court must commit him, or require him to give bail for his appearance to answer to the offense; and may also require the witnesses to give bail for their appearance. ing defendant to answer to another or a higher offense, 4793, 4904.

Mont. Pen. C. 2 2090; N. Dak. (1895) 8198.

New information or resubmission when facts charged do not constitute an offense, 4868. Hold

These objections not waived by failure to demur, 4787.

4865. Id. Defendant discharged. Exception. If the jury is discharged because the court has not jurisdiction of the offense charged and it appears that it was committed out of the jurisdiction of this state, the defendant must be discharged, unless the court orders that he be detained for a reasonable time, to be specified in the order, to enable the county attorney to communicate with the chief executive officer of the country, state, territory, or district where the offense was committed. [C. L. § 5052*.

N. Dak. (1895) 8202.

4866. Id. When jurisdiction lies in another county, defendant held. If the offense was committed within the jurisdiction of another county of this state, the court may direct the defendant to be committed for such time as it deems reasonable, to await a warrant from the proper county for his arrest; or if the offense is a misdemeanor only, it may admit him to bail in an undertaking, with sufficient sureties, that he will, within such time as the court may appoint, render himself amenable to a warrant for his arrest from the proper county; and, if not sooner arrested thereon, will attend at the office of the sheriff of the county where the trial was had, at a certain time particularly specified in the undertaking to surrender himself upon the warrant, if issued, or that his bail will forfeit such sum as the court may fix, to be mentioned in the undertaking; and the clerk must forthwith transmit a certified copy of the indictment or information, and of all

the papers filed in the action, to the county attorney of the proper county, the expense of which transmission is chargeable to that county.

Cal. Pen. C. 1115; Mont. Pen. C. 2093; N. Dak. When jurisdiction lies in more than one county, (1895) 8203, 8209. 22 4584, 4589, 4592.

4867. Id. Arrest on warrant from proper county, or discharge. If the defendant is not arrested on a warrant from the proper county, as provided in the next preceding section, he must be discharged from custody or his bail in the action is exonerated, or money deposited instead of bail must be refunded as the case may be, and the sureties in the undertaking, as mentioned in that section, must be discharged. If he is arrested, the same proceedings must be had thereon as upon the arrest of a defendant in another county on a warrant issued by a magistrate.

Cal. Pen. C. 1116; Mont. Pen. C. ? 2094.

4868. Facts not constituting an offense. Discharge or resubmission. If the jury be discharged because the facts as charged do not constitute an offense punishable by law, the court must order that the defendant, if in custody, be discharged; or, if admitted to bail, that his bail be exonorated; or, if he has deposited money instead of bail, that the money be refunded to him, unless in its opinion a new indictment or information can be framed, upon which the defendant can be legally convicted, in which case it may direct the county attorney to file a new information, or direct that the case be submitted to the same or another grand jury; and the same preceedings must be had thereon as are prescribed in section forty-seven hundred and seventy-five.

Cal. Pen. C. 1117; Mont. Pen. C. 2095*; N. Dak. (1895) ? 8207*.

4869. Juror knowing fact must testify. If a juror has any personal knowledge respecting a fact in controversy in a cause, he must declare it in open court during the trial. If, during the retirement of a jury, a juror declares a fact which could be evidence in a 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. Cal. Pen. C. 1120; Mont. Pen. C. ? 2096; N. Dak. (1895) ? 8210.

4870. View by jury. Oath of officer attending. When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of the officer, to the place which must be shown to them by a person appointed by the court for that purpose; and the officer must be sworn to suffer no person to speak or communicate with the jury, nor do so himself on any subject connected with the trial and to return them into court without unnecessary delay, or at a specified time. [C. L. § 5053.

Cal. Pen. C. 1119.

4871. Jurors permitted to separate, when. Oath of officer. The jurors sworn to try a criminal action may, at any time before the submission of the case to the jury, in the discretion of the court, be permitted to separate or be kept in charge of a proper officer. The officer must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to them or communicate with them, nor to do so himself, on any subject connected with the trial, and to return them into court at the next meeting thereof. [C. L. § 5054. 4 U. 49; 6 P. 49. Contra, under different statute, in People v. Shafer, 1 U. 260.

Cal. Pen. C. 1121.

Allowing jury in capital case to separate is discretionary with the court. People v. Callaghan,

4872. Court to admonish jury about conversing, etc. The jury must also at each adjournment of the court, whether permitted to separate or kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves nor with any one else on any subject connected

with the trial, nor to form or express any opinion thereon until the case is finally submitted to them. [C. L. § 5055.

Cal. Pen. C. 1122.

4873. Sickness of judge or juror. Procedure. 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 afterward impaneled. If the judge becomes sick he may discharge the jury. [C. L. § 5056*.

Cal. Pen. C. 1123*; Mont. Pen. C. ? 2101. 4874. Court to decide law. which arise in the course of a trial.

Cal. Pen. C. ? 1124.

Sickness of juror after retirement of jury, 4883. The court must decide all questions of law [C. L. § 5057.

4875. In libel, jury to determine law and fact. On a trial for libel, the jury shall have the right to determine the law and the fact. [C. L. § 5058.

Cal. Pen. C. 1125.

General provisions as to libel, Con. art. 1, sec. 15; ?? 4196-4207.

4876. Court to determine the law; the jury, the facts. On a trial for any other offense than libel, questions of law are to be decided by the court, questions of fact by the jury; and, although the jury shall have the power to find a general verdict, which includes questions of law as well as of fact, they shall be bound, nevertheless, to receive as law what is laid down as such by the court [C. L. § 5059.

Cal. Pen. C. 1126.

4877. Jury to decide in court or retire. Officer sworn. After hearing the charge the jury may either decide in court or may retire for deliberation. If they do not agree without retiring, an officer must be sworn to keep them together in some private and convenient place, and not permit any person to speak to or communicate with them, nor to do so himself, unless by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they shall have so agreed, or when ordered by the court. [C. L. § 5061.

Cal. Pen. C. 1128.

4878. Defendant may be committed though on bail, when. When a defendant who shall have given bail shall appear 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, to abide the judgment or further order of the court, and he must be committed and held in custody accordingly. [C. L. § 5062.

Cal. Pen. C. 1129.

4879. Absence of county attorney. Appointment of substitute. If the county attorney fails to attend at the trial, the court must appoint some attorney-at-law to perform the duties of the county attorney on such trial. [C. L. § 5063.

Cal. Pen. C. 1130.

CHAPTER 34.

CONDUCT OF JURY.

4880. Jury to have food and lodging at expense of county. While the jury are kept together, either during the progress of the trial or after their retirement for deliberation they must be provided by the sheriff, upon the order

of the court, at the expense of the county, with suitable and sufficient food and lodging. [C. L. § 5064*.

N. Dak. (1895) 8223; Cal. Pen. C. 1136*.

4881. Jury may take written instructions, etc., with them. Upon retiring for deliberation, the jury may take with them all papers, except depositions, which shall have been received as evidence in the case, or copies of such 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. They may also take with them the written instructions given, and notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person. [C. L. § 5065.

Cal. Pen. C. 1137.

4882. Jury may return for further instructions. Notice. After the jury shall have retired for deliberation, if there is any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the county attorney and the defendant or his counsel. [C. L. § 5066.

4883. Sickness of juror. Jury discharged. If, after the retirement of the jury, one of them is taken so sick as to prevent the continuance of his duty, or any other accident or cause occurs to prevent their being kept for deliberation, the jury may be discharged. [C. L. § 5067.

Cal. Pen. C. 1139.

Sickness of judge or of juror, 2 4873. Case may be subsequently tried, ? 4885.

4884. Jury not discharged until verdict rendered. Exception. Except as provided in the last section, the jury shall not be discharged after the case shall have been submitted to them until they shall 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 may deem proper, it shall satisfactorily appear that there is no reasonable probability that the jury can agree. [C. L. § 5068.

Cal. Pen. C. 2 1140.

4885. Retrial when verdict prevented. In all cases where a jury shall be discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant shall have been discharged during the progress of the trial or after the case shall have been submitted to them, the case may be again tried at the same or another term. [C. L. § 5069.

Cal. Pen. C. 1141*.

4886. Adjournment during absence of jury. While the jury are absent the court may adjourn from time to time, as to other business, but it must nevertheless be open for every purpose connected with the case submitted to the jury, until a verdict is rendered or the jury discharged. [C. L. § 5070.

Cal. Pen. C. 1142.

Instructions may be given, verdict received, or jury discharged on a legil holiday, 2 701.

4887. Final adjournment discharges jury. A final adjournment of the court shall discharge the jury. [C. L. § 5071.

Cal. Pen. C. 1143.