4984. Bail how taken. The taking of bail shall consist in the acceptance, by a competent court, magistrate, or a legally authorized officer, of the undertaking with sufficient sureties for the appearance of the defendant according to the terms of the undertaking, or that the sureties will pay to the state a specified sum if he does not appear. [C. L. § 5161*.

Form of bond; qualifications of sureties, ?? 4995-4997.

4985. Bail in capital case taken by whom and when. A defendant charged with an offense punishable with death may be admitted to bail only by a judge of the supreme or district court. When, however, the proof of his guilt is evident or the presumption strong, bail shall not be taken. The filing of an information or the finding of an indictment shall not add to the strength of the proof or the presumption to be drawn therefrom. [C. L. § 5162*.

Cal. Pen. C. 1270*.

Bail in capital cases, Con. art. 1, sec. 8. 4986. Bail a matter of right in case other than capital. If the charge is for any other offense, he may be admitted to bail before conviction, as a matter of right. [C. L. § 5163.

Cal. Pen. C. ? 1271.

Bail as a matter of right in other than capital cases, Con. art. 1, sec. 8.

4987. Bail on appeal after conviction. Discretionary, when. After conviction of an offense not punishable with death, a defendant who shall have appealed may be admitted to bail:

1. As a matter of right, when the appeal is from a judgment imposing a fine only.

2. As a matter of discretion in all other cases. Cal. Pen. C. ? 1272.

[C. L. § 5164.

4988. Bail before conviction. Bail on appeal. If the offense is bailable, the defendant may be admitted to bail:

Before conviction

1.

For his appearance before the magistrate. on the examination of the charge, before being held to answer.

2. To appear at the court to which the magistrate shall be required to return the complaint, upon the defendant being held to answer after examination. 3. After information filed or indictment found, either before warrant is issued for his arrest or upon any order of the court committing him or enlarging the amount of bail, or upon his being surrendered by his bail to answer the information or indictment in the court in which it is filed or found or to which it may have been transferred for trial.

After conviction and upon an appeal—

1. If the appeal is from a judgment imposing a fine only, on an undertaking of bail that he will pay the same or such part thereof as the appellate court may direct, if the judgment is affirmed or modified, or the appeal is dismissed.

2. If judgment of imprisonment shall have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or that in case the judgment is reversed and the cause remanded for a new trial, he will appear in the court to which said cause may be remanded, and submit himself to the orders and process thereof. [C. L. $5165*

N. Dak. (1895) 8448; Cal. Pen. C. ? 1273*. Where a territorial statute provides that, in criminal actions, a defendant who has appealed from a judgment imposing a fine may be admitted to bail as a matter of right and as a matter of discretion in all other cases of an appeal from a judgment inflicting both fine and imprisonment, he is not entitled

to be admitted to bail as a matter of right but only in the discretion of the court. A certificate of probable cause under a statute did not necessarily carry with it the right to bail nor deprive the court of all discretion in the premises. Clawson v. U. S., 113 U. S. 143. Same case, 4 U. 34; 5 P. 689.

4989. Notice to county attorney of application for bail. When the admission to bail is a matter of discretion, the court or officer to whom the

application shall be made must require reasonable notice thereof to be given to the county attorney. [C. L. § 5166.

Cal. Pen. C. ? 1274.

4990. Bail fixed when information or indictment filed. Entry. When the offense charged is not punishable with death, the court at the time the indictment is presented and filed, or information filed, must make an order, to be entered in the minutes, fixing the amount in which the defendant may be admitted to bail, unless the court indorse such order on the warrant.

Mont. Pen. C. ? 2360.

4991. Id. Indorsement on warrant. When the order fixing the amount of bail is entered in the minutes, the clerk must indorse the same on the warrant.

Mont. Pen. C. ? 2361.

4992. What magistrate to admit to bail. Except as otherwise provided in capital cases, a defendant held to answer upon an examination for a public offense may be admitted to bail by the magistrate by whom he is so held, or by any magistrate who has power to issue the writ of habeas corpus. [C. L. § 5167.

Cal. Pen. C. 1277*.

4993. Bail in cases not capital. Duty of officer. When the offense charged in the information or indictment is not punishable with death, the officer serving the warrant must, if required, take the defendant before a magistrate in the county in which it shall have been issued, or in which he is arrested, for the purpose of giving bail. [C. L. § 5172.

Cal. Pen. C. ? 1284*.

Bail as a matter of right in other than capital cases, Con. art. 1, sec. 8; 2 4986.

4994. Capital cases. Duty of arresting officer. If the offense charged in the information or indictment is punishable with death, the officer arresting the defendant must deliver him into custody, according to the command of the warrant; and when the defendant shall have been so delivered, he must be held by the sheriff, unless admitted to bail on examination upon a writ of habeas corpus, or upon a motion to the court in which the action is pending, or the judge thereof. [C. L. §§ 5173, 5174.

Cal. Pen. C. ?? 1285, 1286*.

Bail in capital cases, Con. art. 1, sec. 8; 4985.

4995. Form of undertaking of bail. Bail must be put in by a written undertaking, executed by at least two sufficient sureties (with or without the defendant, in the discretion of the magistrate), and duly acknowledged, in substantially the following form:

of (stating briefly the nature of the offense), or (as the case may be), charging (name of defendant) with the crime of (designating it generally) and he having been admitted to bail in the sum of

and

dollars;

Now, therefore, we, (as the fact may be) of (stating their place of residence), jointly and severally, hereby undertake that the above named (naming the defendant), will appear and answer the charge above mentioned (or the information or indictment above mentioned, as the case may be), in whatever court it may be presented, and will at all times hold (or surrender) himself amenable to the orders and process of the court, and if convicted, will appear for judgment, and render himself in execution thereof, or, if he fails to perform either of these conditions, that he will pay to the state of Utah the sum of

dollars, (inserting the sum in which the defendant shall be admitted to bail). [C. L. § 5168*.

Cal. Pen. C. 1278*.

offense if the offense is described in language of Recognizance is sufficient as to description of the the statute. U. S. v. Eldredge, 5 U. 161; 13 P. 673.

4996. Id. Qualifications of sureties. The qualifications of bail shall be as follows:

1. Each of them must be a resident householder or freeholder within this state; but the court or magistrate may refuse to accept any person as bail who shall not be a resident of the county where bail is offered.

2. They must each be worth the amount specified in the undertaking, exclusive of property exempt from execution; but the court or magistrate, on taking bail, may allow more than two sureties to justify severally in amounts less than that expressed in the undertaking, if the whole justification is equivalent to that of sufficient bail. [C. L. § 5169.

Cal. Pen. C. 1279.

4997. Id. Justification of sureties. The bail must in all cases justify by affidavit taken before the magistrate that they each possess the qualifications provided in the preceding section. The magistrate may further examine the bail upon oath concerning their sufficiency, in such manner as he may deem proper. [C. L. § 5170.

Cal. Pen. C. ? 1280.

4998. Discharge of defendant on giving bail. Upon the allowance of bail and the execution of the undertaking, the magistrate must, if the defendant is in custody, make and sign an order for his discharge, upon the delivery of which to the proper officer the defendant must be discharged. [C. L. § 5171.

Cal. Pen. C. ? 1281.

4999. Increase or reduction of bail. Notice. After a defendant shall have been admitted to bail upon an information or indictment, the court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. If the amount is increased, the court may order the defendant to be committed to actual custody, unless he gives bail in such increased amount. If application is made by the defendant for a reduction of the amount, notice of the application must be served upon the county attorney.

Mont. Pen. C. 2366.

BAIL ON APPEAL.

5000. Who may admit to bail on appeal. Qualifications of sureties. In cases in which the defendant may be admitted to bail upon an appeal, the order admitting him to bail may be made by any magistrate having the power to issue a writ of habeas corpus, or by the magistrate before whom the trial was had. The bail must possess the qualifications, and must be put in, in all respects as provided in other cases of bail, except that the undertaking must be conditioned as prescribed in section forty-nine hundred and eighty-eight, for undertakings of bail on appeal. [C. L. §§ 5177*, 5178.

Cal. Pen. C. ?? 1291, 1292.

Qualifications of bail, 4996.

DEPOSIT INSTEAD OF BAIL.

5001. Deposit may be made instead of bail. The defendant at any time after an order admitting him to bail, instead of giving bail may deposit with the magistrate or with the clerk of the court in which he shall be held to answer, the sum mentioned in the order, and upon delivering to the officer in whose custody he is, a certificate of the deposit, he must be discharged from custody. [C. L. § 5179.

Cal. Pen. C. 1295*.

5002. Substitution of undertaking for deposit. If the defendant shall have given bail, he may at any time before the forfeiture of the undertaking, in like manner deposit the sum mentioned therein and upon the deposit being made the bail shall be exonerated. [C. L. § 5180.

Cal. Pen. C. 1296.

5003. Disposition of forfeited deposit for fine. When money shall have been deposited, if it remains on deposit at the time of a judgment for the payment of a fine, the clerk must, under the direction of the court, apply the money in satisfaction thereof, and after satisfying the fine and costs, must refund the surplus, if any, to the defendant. [C. L. § 5181.

Cal. Pen. C. 1297.

SURRENDER OF DEFENDANT.

5004. Surrender, personal or by bail. Procedure. At any time before the forfeiture of their undertaking the bail may surrender the defendant in their exoneration, or he may surrender himself to the officer to whose custody he shall have been committed at the time of giving bail, in the following manner: 1. A certified copy of undertaking of bail must be delivered to the officer, who must detain the defendant in his custody thereon, as upon the commitment, and by a certificate in writing acknowledge the surrender.

2. Upon the undertaking and the certificate of the officer, the court in which the action or appeal is pending may, upon notice of five days to the county attorney. with a copy of the undertaking and certificate, order that the bail be exonerated, and on filing the order and the papers used on the application, they shall be exonerated accordingly. [C. L. § 5182.

Cal. Pen. C. ? 1300.

5005. Arrest of defendant by bail. For the purpose of surrendering the defendant, the bail, at any time before they shall be finally discharged, and at any place within the state, may themselves arrest him, or by written authority indorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so. [C. L. § 5183.

Cal. Pen. C. 1301.

5006. Surrender releases deposit. If money shall have been deposited instead of bail, and the defendant, at any time before the forfeiture thereof, surrenders himself to the officer to whom the commitment was directed, in the manner provided in the last two sections, the court must order a return of the deposit to the defendant, upon producing the certificate of the officer showing the surrender, and upon a notice of five days to the county attorney, with a copy of the certificate. [C. L. § 5184.

Cal. Pen. C. 1302.

FORFEITURE OF BAIL.

5007. Forfeiture of bail by non-appearance. Satisfactory excuse. If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes, and the undertaking of bail, or the money deposited instead of bail, as the case may be, shall thereupon be declared forfeited. But if at any time before the final adjournment of the court, the defendant or his bail appears and satisfactorily excuses his neglect, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just. [C. L. § 5185.

Cal. Pen. C. 1305.

Sureties on forfeited undertaking of bail who do not apply to have forfeiture set aside hereunder

thereby waive informalities of which they might have availed themselves in that manner. U. S. v. Eldredge, 5 U. 161; 13 P. 673.

5008. Forfeiture. Action against bail. If the forfeiture is not discharged as provided in the last section, the county attorney may at any time after

the adjournment of the court proceed by action only against the bail upon their undertaking. [C. L. § 5186.

Cal. Pen. C. 1306.

5009. Disposition of forfeited deposit. If, by reason of the neglect of the defendant to appear, money deposited instead of bail is forfeited, and the forfeiture is not discharged or remitted, the clerk with whom it is deposited must immediately after the final adjournment of the court, pay over the money deposited to the state treasurer. If bail be given in a justice's court for the appearance of a defendant in a case triable therein, the same if forfeited shall be paid by such justice into the county treasury. [C. L. § 5187*.

Cal. Pen. C. 2 1307*.

A defendant who has forfeited his bail and remains a fugitive from justice has no right to be

heard on appeal. People v. Tremayne, 3 U. 331; 3 P. 85.

When bail, or

5010. Arrest when bail forfeited or insufficient. money deposited instead thereof, has been forfeited, or the bail has become insufficient, the court may issue an order for the arrest of the defendant, setting forth the reasons therefor, and the provisions of this chapter as to the original taking of bail, shall thereupon be applicable.

N. Dak. (1895) ? 8458*.

CHAPTER 46.

WITNESSES AND EVIDENCE.

5011. Competency of witnesses determined by rules in civil cases. Exception. The rules for determining the competency of witnesses in civil actions shall be applicable also to criminal actions and proceedings, except as otherwise provided in this code. [C. L. § 5196.

Cal. Pen. C. 1321.

Witnesses, etc., civil procedure, 22 3412-3416. Subpoena, issuance, service, etc., ?? 5017-5026.

5012. Rules of evidence same as in civil cases. Exception. The rules of evidence in civil actions shall be applicable also to criminal actions, except as otherwise provided in this code. [C. L. § 5042.

Cal. Pen. C., 1102.

Evidence, civil procedure, ?? 3374-3412.

BURDEN OF PROOF. In no criminal case is the burden of proof ever shifted from the prosecution to the defense; it rests upon the prosecut on throughout the entire trial, and the rule of a reasonable doubt applies in every such case. People v. Tracy, 1 U. 343. But see 4856.

Burden is on defendant to show defense of insanity, it not appearing from evidence of the prosecution. People v. Dillon, 8 U. 92; 30 P. 150. People v. Colton, 5 U. 451; 16 P. 902.

CROSS-EXAMINATION, REBUTTAL, ETC. A witness having testified on direct examination that he had a motive for watching deceased and defendant, was perm tted to state on redirect examinat on what that motive was; held, error. People v. Biddlecome, 3 U. 208; 2 P. 194.

On a trial for murder, the defense of an attempted arrest of deceased for larceny of certain cattle was made; held, that it was proper in rebuttal to offer evidence showing property in the cattle in a third person. People v. Tidwell, 4 U. 506; 12 P. 61.

A witness may be asked on cross-examination whether he has ever been arrested or indicted or charged with a crime, but cannot be contradicted upon such matters. People v. Hite, 8 U. 461; 33 P. 254.

The cross-examination of a witness concerning

SURROUNDING CIRCUMSTANCES. Evidence of the effect upon the minds of residents of a town as to fear for the security of life or property occasioned by the unlawful acts of defendants and their companions, was adm ssible to show a breach of the public peace; and to show this, the declarations, expressions of fear, and acts of such residents at the time might be proven. People v. O'Loughlin, 3 U. 133; 1 P. 653.

Evidence that S had offered to sell C stock similar to that which the defendant was accused of having stolen, and that subsequently the latter had stated to C he had pu chased this stock of S, is competent testimony for the defense. Territory v. Woolsey, 3 U. 470; 24 P. 765.

On a trial for murder, evidence that defendants, although not regularly constituted deputies, were