4920. Judgment for fine constitutes a lien. A judgment that the defendant pay a fine constitutes a lien, in like manner as a judgment for money rendered in a civil action. [C. L. § 5114.

Cal. Pen. C. 1206.

4921. Fines of district court go to the state. Fines imposed by the district court shall be turned into the state treasury.

4922. When complainant to pay costs. Judgment. Execution. In all cases of criminal prosecution where the defendant is not found guilty, the court may require the complainant, if it appears that the prosecution was malicious or without probable cause, to pay the costs of the action, or to give security to pay the same within thirty days. If the complainant does not comply with the order of the court, judgment may be entered against him for the amount thereof. Such judgments may be enforced and appealed from in the same manner as those rendered in civil actions.

Mont. Pen. C. 22 2708, 2709.

4923. Entry of judgment. Making up judgment roll. When judgment upon a conviction shall be rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction was had, and the fact of a prior conviction, if one, and must, within five days, annex together and file the following papers, which shall constitute a record of the action:

1. The information or indictment and a copy of the minutes of the plea or demurrer.

4.

The bill of exceptions, if there is one, and the decision of the court upon matters of law declared to be deemed excepted to.

5. The requests to charge, given or refused, with indorsements thereon. [C. L. § 5115.

Cal. Pen. C. 1207*.

Written requests to charge with indorsements thereon form part of the record, ? 4948.

CHAPTER 38.

THE EXECUTION.

4924. Warrant for execution of judgment other than death. When a judgment, other than of death, shall have been pronounced, a certified copy of the entry thereof upon the minutes must be forthwith furnished to the officer whose duty it is to execute the judgment, and no other warrant or authority shall be necessary to justify or require its execution. [C. L. § 5116.

Cal. Pen. C. 1213.

4925. Judgment for fine and costs. Execution. If the judgment is for a fine and costs, or either alone, execution may be issued thereon as on a judgment in a civil action. [C. L. § 5117*.

Cal. Pen. C. 1214*.

If the judg

4926. Judgment of imprisonment. Commitment. ment is for imprisonment, or a fine and imprisonment until such fine is paid, the defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment is complied with. [C. L. § 5118.

Cal. Pen. C. 1215.

place of imprisonment, ? 4499. Temporary release

Term begins to run on delivery of defendant at not counted as part of term, ¿ 4499. 4927. Id. Delivery to warden of prison. Return of officer. If the judgment is for imprisonment in the state prison, the sheriff of the county

must, upon receipt of a certified copy thereof, take and deliver the defendant to the warden of the state prison. He must also deliver to the warden the certified copy of the judgment, and take from the warden a receipt for the defendant, and make return thereof to the court. [C. L. § 5119*.

Cal. Pen. C. ? 1216*.

4928. Judgment of death. Form of warrant. Day of execution. When judgment of death is rendered, a warrant, signed by the judge and attested by the clerk, under the seal of the court, must be drawn and delivered to the sheriff. It must state the conviction and judgment, and appoint a day on which the judgment is to be executed, which must not be less than thirty nor more than sixty days from the time of the judgment.

Cal. Pen. C. 1217. Cal. Sup. '93, 1217, p. 1072. Clerical error in judgment in the use of the word "public" in sentencing defendant to be "publicly

[C. L. § 5120.

executed" is not ground for reversal. People v. Calton, 5 U. 451; 16 P. 902. See Calton v. Utah, 130 U. S. 83.

4929. Id. Statement of judge to board of pardons. The judge of a court at which a conviction requiring judgment of death shall have been had. must, immediately after the conviction, transmit to the president of the board of pardons, by mail or otherwise, a statement of the conviction and judgment and of the testimony given at the trial. [C. L. § 5121*.

Cal. Pen. C. 2 1218*.

4930. Imprisonment to be at hard labor in all cases. In all cases when by law a person is sentenced to imprisonment either in the state prison or in a county jail, it shall be at hard labor whether so designated by the court or jury or not.

N. Dak. (1895) ? 8304*.

4931. Judgment of death suspended by whom. No judge. tribunal. nor officer other than the governor or the board of pardons, can suspend the execution of a judgment of death, except the sheriff, as provided in the six succeeding sections, unless an appeal is taken. [C. L. 5123*.

Cal. Pen. C. 1220*. Cal. Sup. '93, 1220*, p. 1072.

Board of pardons, Con. art. 7, sec. 12. 4932. Id. Insanity of defendant. Trial by jury. Notice. If, after judgment of death, there is 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 shall have been rendered, may summon from the list of the jurors selected by the proper officers for the year, a jury of twelve persons to inquire into the supposed insanity, and must give immediate notice thereof to the county attorney or other counsel for the state. [C. L. § 5124.

5052-5061.

The county

Cal. Pen. C. 1221*. Cal. Sup. '93, ? 1221*, p. 1072. Inquiry into sanity of defendant, 4933. Id. County attorney to attend. Witnesses. attorney must 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 the court. [C. L. § 5125.

Cal. Pen. C. ? 1222.

4934. Id. Inquisition signed by jury and sheriff, and filed. A certificate of the inquisition must be signed by the jurors and the sheriff, and filed with the clerk of the court in which the conviction shall have been had. [C. L. § 5126.

Cal. Pen. C. 1223. Cal. Sup. '93, 2 1223*, p. 1072.

4935. Id. Procedure when defendant found sane: when insane. If it is found by the inquisition that the defendant is sane, the sheriff must execute the judgment; but if it is found that he is insane, the sheriff must suspend the execution of the judgment until he receives a warrant from the president of the board of pardons or from the judge of the court by which the judgment shall have been rendered, directing the execution of the judgment. If the

inquisition finds that the defendant is insane, the sheriff must immediately transmit it to the board of pardons who may, when the defendant becomes sane, issue a warrant appointing a day for the execution of the judgment. [C. L. § 5127*. Cal. Pen. C. 1224. Cal. Sup. '93, 1224, p. 1072.

4936. Female sentenced to death thought pregnant. Examination. If there is good reason to suppose that a female against whom a judgment of death shall have been rendered, is pregnant, the sheriff, with the concurrence of the judge of the court by which the judgment shall have been rendered, may summon a jury of three physicians to inquire into the supposed pregnancy. Immediate notice thereof must be given to the county attorney of the county, and the provisions of sections forty-nine hundred and thirty-three and forty-nine hundred and thirty-four shall apply to the proceedings upon the inquisition [C. L. § 5128.

Cal. Pen. C. 1225. Cal. Sup. '93, ? 1225, p, 1073.

4937. Id. Execution suspended during pregnancy. If it is found by the inquisition that the female is not pregnant, the sheriff must execute the judgment; if it is found that she is pregnant, the officer must suspend the execution of the judgment, and transmit the inquisition to the board of pardons. When the board of pardons shall be satisfied that the female is no longer pregnant, it may issue its warrant appointing a day for the execution of the judgment. [C. L. § 5129*.

Cal. Pen. C. 1226*. Cal. Sup. '93, 1226*, p. 1073.

4938. Judgment of death remaining unexecuted. Order to enforce. If, for any reason, a judgment of death shall not have been executed, and it remains in force, the court in which the conviction shall have been had, on the application of the county attorney, must order the defendant to be brought before it, or if he is at large, a warrant for his apprehension may be issued. Upon the defendant being brought before the court, it must inquire into the facts, and if no legal reasons exist against the execution of the judgment, must make an order that the sheriff execute the judgment at a specified time. The officer must execute the judgment accordingly. [C. L. § 5130.

Cal. Pen. C. 1227. Cal. Sup. '93, 1227, p. 1073.

4939. Death penalty inflicted by hanging or shooting, at defendant's election. The punishment of death must be inflicted by hanging the defendant by the neck until he is dead, or by shooting him, at his election. If the defendant neglect or refuse to make the election, the court at the time of rendering the sentence must declare the mode and enter the same as a part of its judgment. [C. L. § 5131.

Cal. Pen. C. 1228*.

ment. People v. Wilkinson, 2 U. 158. Affirmed,

Shooting is not a cruel and unusual" punish- 99 U. S. 130.

4940. Id. Executed by a sheriff at state prison. Appliances. A judgment of death must be executed by the sheriff of the county in which the judgment was rendered, or by his deputy or deputies, within the exterior walls of the state prison. The board of corrections of the state prison shall provide the necessary appliances for the execution.

Iowa, McClain's An. C. (1888) ?? 5139, 5140*; Cal. Pen. C. ? 1229*. Cal. Sup. '93, ? 1229, p. 1074.

4941. Id. Who may be present. The sheriff must invite the presence of a physician and the county attorney of the county; and he shall, at the request of the defendant, permit such ministers of the gospel, not exceeding two, as the defendant may name, and any persons, relatives, or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution. But no other person than those mentioned in this section shall be present at the execution, nor shall any person under age be permitted to witness the same. [C. L. § 5132*.

Cal. Pen. C. 1229*.

4942. Id.

Return of sheriff. After the execution the sheriff must make a return upon the death warrant, showing the time, place, and manner in which it shall have been executed. [C. L. § 5133.

4943. Exceptions that may be taken by defendant. On the trial of an information or indictment, exceptions may be taken by the defendant to a decision of the court:

1. In disallowing a challenge to the panel of the jury, or to an individual juror for implied bias.

2. In admitting or rejecting witnesses or testimony, on the trial of a challenge to a juror for actual bias.

3. In admitting or rejecting witnesses or evidence, or in deciding any matter of law not purely discretionary, or in charging or instructing the jury upon the law, on the trial of the issue. [C. L. § 5085*.

Cal. Pen. C. 2 1170*.

EXCEPTIONS TO CHARGE. General exception to charge as a whole is insufficient, if any part of it is correct. People v. Berlin, 9 U. 383; 35 P. 498. People v. Hart, 10 U. 204; 37 P. 330.

An exception to the refusal of the court to give the instructions requested by the defendant" will not be sustained if any one of such instructions is erroneous. People v. Thiede, 11 U. 241; 39 P. 837. Affirmed, Thiede v. People, 159 U. S. 510.

An exception that the court erred in defining malice without pointing out the error is too general. People v. Thiede, 11 U. 241; 39 P. 837; 159 U. S. 510.

Failure to except to refusal of instructions re-
quested prevents error being assigned therein.
People v. Berlin, 9 U. 383; 35 P. 498.
See 4955 et seq.

4944. What deemed excepted to by either party. The decision of the court in a criminal action or proceeding upon a matter of law shall be deemed excepted to by either party in the following cases:

1. In granting or refusing a motion to set aside an information or indictment.

2.

In allowing or disallowing a demurrer to an information or indictment.

3. In granting or refusing a motion in arrest of judgment.

4. In granting or refusing a motion for a new trial.

5. In making or refusing to make an order after judgment affecting any substantial right of the parties. [C. L. § 5087*.

N. Dak. (1895) 8259; Cal. Pen. C. 2 1172*.

4945. What deemed excepted to by defendant. The decision of the court in a criminal action or proceeding upon a matter of law shall be deemed excepted to by the defendant in the following cases:

1. In refusing to grant a motion for a change of the place of trial.

2. In refusing to postpone the trial on motion of the defendant. When the verdict of the jury is against the defendant, it shall be deemed excepted to by him. [C. L. § 5088*.

N. Dak. (1895) 8260*; Cal. Pen. C. 1173*.

Bills of

4946. Bills of exception settled, etc., as in civil cases. exception shall be settled, signed, and filed as provided by law in civil cases. [C. L. § 5089*.

Cal. Pen. C. 1174*

In civil procedure, ?? 3286-3290.

4947. Id. What evidence may be included. A bill of exceptions must contain only so much of the evidence as shall be necessary to present the questions of law upon which the exceptions were taken; and the judge must upon

the settlement of the bill, whether agreed to by the parties or not, strike out all other matters contained therein. [C. L. § 5090.

Cal. Pen. C. 2 1175.

4948. Written requests to charge form part of the record. When written requests to charge have been presented, given, or refused, the questions presented in such requests need not be excepted to or embodied in the bill of exceptions, but such written requests to charge with the indorsements thereon showing the action of the court, 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 if presented in a bill of exceptions. [C. L. § 5091*.

Cal. Pen. C. 2 1176*.

Record of the action, 4923.

4949. Bill need not contain matters deemed excepted to. The decision of the court upon any matters of law declared to be deemed excepted to, need not be embodied in a bill of exceptions.

Mont. Pen, C. ¿ 2176*.

CHAPTER 40.

NEW TRIALS.

4950. New trial defined. A new trial is a re-examination of the issue in the same court before another jury, after a verdict has been given. § 5092.

Cal. Pen. C. 1179.

[C. L.

4951. Effect of granting new trial. Evidence, etc. The granting of a new trial shall place the parties in the same position as if no trial shall have been had. All the testimony must be produced anew, and the former verdict shall not be used nor referred to either in evidence or in argument, nor be pleaded in bar of any conviction which might have been had under the information or indictment. [C. L. § 5093*.

Cal. Pen. C. ? 1180*.

Order granting or refusing motion for new trial deemed excepted to, 4944. When testimony officially reported may be used on subsequent trial, ? 5013.

Defendant was tried on an indictment upon which he might have been convicted of murder in the first

or second degree, or of voluntary or involuntary manslaughter, and found guilty of murder in the second degree, and upon appeal a new trial was granted; held, that he could be tried for murder in the first degree, after the verdict had been set aside on his motion. State v. Kessler, U.; 49 P. 293.

4952. Grounds for new trial. Affidavits. Postponement. When

a verdict shall have been rendered against the defendant, the court may, upon his application, grant a new trial in the following cases only:

1.

When a trial shall have been had in his absence, if the information or indictment is for a felony.

2. When the jury shall have received out of court any evidence, other than that resulting from a view of the premises, or any communication, document, or paper referring to the case.

3. When the jury shall have separated without leave of the court, after retiring to deliberate upon their verdict, or have been guilty of any misconduct by which a fair and due consideration of the case may have been prevented.

4. When the verdict shall have been decided by lot, or by any means other

than a fair expression of opinion on the part of all the jurors.

5. When the court shall have misdirected the jury in a matter of law, or shall have erred in the decision of any question of law arising during the course of the trial, or shall have done or allowed any act in the case prejudicial to the substantial rights of the defendant.

6. When the verdict is contrary to law or evidence.