CHAPTER 28. REMOVAL OF ACTION BEFORE TRIAL. 4799. Removal when impartial trial cannot be had. A criminal action may be removed from the court in which it is pending, on the application of the defendant, upon the ground that a fair and impartial trial cannot be had in the county where the action is pending. [C. L. § 4990*. Cal. Pen. C. 1033. Cal. Sup. '89, 1033, p. 474. 4800. Application for removal. Notice. Removal before new trial. The application must be made in open court, and in writing, supported by an affidavit or affidavits, and may be made at any time before trial upon a reasonable notice and the service of copies of the application and affidavit or affidavits upon the county attorney. If a new trial is necessary either by reason of the discharge of a jury without verdict or the granting of a new trial, the removal may be allowed at any time before the new trial. [C. L. § 4991*. Cal. Pen. C. 1034*. Cal. Sup. '89, 1034, p. 475. 4801. When application to be heard in absence of accused. Whenever an affidavit by the defendant shall show that he cannot safely appear in person to make the application because the popular excitement against him is so great as to endanger his personal safety, and such statement is sustained by other testimony, the application may be heard and determined in the absence of the defendant, though he is prosecuted for felony, and shall not, at the time of such application, have been arrested, or given bail, or been arraigned, or demurred, or pleaded to the information or indictment. [C. L. § 4991*. Cal. Pen. C. 1034*. Cal. Sup. '89, 1034, p. 475. 4802. When granted. If the court is satisfied that the representations of the applicant are true, an order must be made for the removal of the action to the district court of a county free from such objection. [C. L. § 4992. Cal. Pen. C. 1035*. Cal. Sup. '89, 1035*, p. 475. Order refusing to grant change of venue deemed excepted to, ? 4945. 4803. Entry of order. Transmission of papers. The order of removal must be entered upon the minutes and the clerk must immediately make out and transmit to the court to which the action shall be removed, a certified copy of the order of removal, record, pleadings, and proceedings in the action, including the undertakings for the appearance of the defendant and of the witnesses. [C. L. § 4993. Cal. Pen. C. 1036. 4804. Id. Removal of defendant in custody. If the defendant is in custody, the order must direct his removal and he must be forthwith removed by the sheriff of the county where he is imprisoned to the custody of the sheriff of the county to which the action is removed. [C. L. § 4994. Cal. Pen. C. 1037. 4805. Order of removal is notice to certain witnesses. Exceptions. If the order of removal is made at a term of the court, it is notice to every person who has entered into an undertaking to appear at such term, to appear at the trial of the action before the court to which the same is removed. In other cases the witnesses must be subpoenaed as provided by this code, or the court may require the witnesses on the part of the state to give security for their appearance before the court in which the defendant is to be tried, as provided by law in other cases. Mont. Pen. C. 1979; N. Dak. (1895) ? 8116. 4806. Costs of removal paid by county. The costs accruing from a change of the place of trial and the costs of the trial shall be paid by the county where the offense was committed. ['96, p. 572*. When costs of removal a county charge, ? 539. 4807. State may have change of place of trial. Petition. The state may have a change of place of trial for any of the causes for which the defendant may obtain the same. The petition therefor must be made by the county attorney supported by affidavit or affidavits. Mont. Pen. C. 1974; N. Dak. (1895) ? 8122*. 4808. Procedure after removal. Pleadings. The court to which the action shall be removed must proceed to trial and judgment therein as if the action had been commenced in such court. If it is necessary to have any of the original pleadings or other papers before such court, the court from which the action shall have been removed must at any time, upon application of the county attorney or of the defendant, order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being retained. [C. L. § 4995. Cal. Pen. C. 2 1038. 4809. CHAPTER 29. MODE OF TRIAL. Issue of fact arises how. An issue of fact arises: 1. Upon a plea of not guilty; or, 2. Upon a plea of a former conviction or acquittal of the same offense; or, Upon a plea of once in jeopardy. Cal. Pen. C. ? 1041. [C. L. § 4996. 4810. Issues of fact tried by a jury. Waiver in certain cases. Issues of fact must be tried by a jury unless a trial by jury be waived in criminal cases not amounting to felony by the consent of both parties expressed in open court and entered on its minutes. [C. L. § 4997. Cal. Pen. C. 1042*. Waiver in criminal case not amounting to felony, 4516. 4811. Presence of defendant, when required. If the prosecution is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor, the trial may be had in the absence of the defendant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the county attorney, by an order or warrant, require the personal attendance of the defendant at the trial. [C. L. § 4998. Cal. Pen. C. 1043. Presence of defendant on arraignment, ? 4757; when verdict rendered, ? 4889. CHAPTER 30. FORMATION OF JURY AND CALENDAR. 4812. Trial juries formed as in civil cases. Trial juries for criminal actions are formed in the same manner as trial juries in civil actions. § 4999. Cal. Pen. C. ? 1046. [C. L. 1320. Civil procedure, clerk to draw names from box, 23135. 4813. Calendar to be prepared by clerk. The clerk must prepare a calendar of all criminal actions pending in the court, enumerating them according to the date of the filing of the information or indictment, specifying opposite the title of each action, whether it is for a felony or a misdemeanor, and whether the defendant is in custody or on bail. [C. L. § 5000. Cal. Pen. C. 1047*. 4814. Id. Order of disposition of cases. The issues on the calendar must be disposed of in the following order, unless for good cause the court shall direct an action to be tried out of its order: 2. Prosecutions for felony, when the defendant is in custody. 3. Prosecutions for felony, when the defendant is on bail. 4. Prosecutions for misdemeanor, when the defendant is on bail. [C. L. $ 5001. Cal. Pen. C. 1048. CHAPTER 31. POSTPONEMENT OF TRIAL. 4815. May be had by either party. Affidavit. Order. When an action shall be called for trial, or at any time previous thereto, the court may, upon sufficient cause shown by either party by affidavit, direct the trial to be postponed to another day of the same or of the next term. [C. L. § 5003*. 4816. Challenge defined. Two kinds. A challenge is an objection made to the trial jurors and is of two kinds: Cal. Pen. C. ? 1055. Where a juror, in reply to a question asked under the direction of the court, stated that he was a citizen of the U. S., and defendant, who was on trial for a felony, relied upon the truthfulness of such statement and accepted the juror, a new trial will be granted if it appear after verdict that such juror was not a citizen. People v. Reece, 3 U. 72; 2 P. 61. Where the diligence used in interrogating the jury is slight and insufficient to discover the dis § 5004. qualification, the jurors not being examined individually, new trial will be denied. People v. Lewis, 4 U. 42: 5 P. 543. Where defendant carefully interrogates a juror as to his having knowledge of or any opinion about the case, and being answered no accepts the juror, new trial will be granted if after conviction he first learns that such juror was one of the grand jury that found the indictment. U. S. v. Christensen, 7 U. 26; 24 P. 618. 4817. Joint defendants to join in challenges. When several defendants are tried together they cannot sever their challenges, but must join therein. [C. L. § 5005. Cal. Pen. C. 1056. Applied, People v. O'Loughlin, 3 U. 133; 1 P. 653. 4818. Panel defined. The panel is a list of jurors returned to serve at a particular court, or for the trial of a particular action. [C. L. § 5006. Cal. Pen. C. 1057*. 4819. Challenge to the panel. A challenge to the panel is an objection made to all the jurors returned, and may be taken by either party. [C. L. $ 5007. Cal. Pen. C. 1058. 4820. Id. Grounds. A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury or on the intentional omission of the proper officer to summon one or more of the jurors drawn. [C. L. § 5008. Cal. Pen. C. ? 1059*. But not on the fact that all members of the same church with defendant have been purposely ex cluded, it appearing that the officers deemed they would not be impartial. People v. Hampton, 4 C. 258; 9 P. 508. 4821. Id. Taken before juror sworn. In writing. A challenge to the panel must be taken before a juror is sworn and must be in writing or be noted by the stenographer, and must plainly and distinctly state the facts constituting the ground of challenge. [C. L. § 5009*. Cal. Pen. C. ? 1060. 4822. Id. Exception to challenge. Trial of sufficiency of challenge. If the sufficiency of the facts alleged as ground of the challenge is denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered on the minutes of the court or of the stenographer, and thereupon the court must proceed to try the sufficiency of the challenge. assuming the facts alleged therein to be true. [C. L. § 5010. Cal. Pen. C. 2 1061. If all of the evidence touching the qualifications of a juror is not contained in the record, it will be conclusively presumed on appeal that the evidence justified the finding of the court as to such qualifications. U. S. v. Groesbeck, 4 U. 487; 11 P. 542. 4823. Id. If challenge found sufficient. Amendment to challenge. If, on the exception, the court finds the challenge sufficient, it may, if justice requires it, permit the party excepting to withdraw his exception and to deny the facts alleged in the challenge. If the exception is allowed, the court may, in like manner, permit an amendment to the challenge. [C. L. § 5011. Cal. Pen. C. 1062. 4824. Id. Denial of challenge, how entered. Trial of challenge. If the challenge is denied, the denial may be oral and must be entered on the minutes of the court or be noted by the stenographer, and the court must proceed to try the question of fact, and upon such trial the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other person. may be examined to prove or disprove the facts alleged as the ground of the challenge. [C. L. § 5012. Cal. Pen. C. ? 1063. 4825. Id. Procedure, if allowed; if disallowed. If, either upon exception to the challenge or a denial of the facts, the challenge is allowed, the court must discharge the jury, so far as the trial in question is concerned. If it is disallowed, the court must direct the jury to be impaneled. [C. L. § 5013. Cal. Pen. C. 1065. 4826. Defendant to be informed of right to challenge. Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intends to challenge an individual juror, he must do so when the juror appears and before he is sworn. [C. L. § 5014. Cal. Pen. C. ? 1066. 4827. Challenges to individual jurors. A challenge to an individual juror is either: 4828. Id. When taken. It must be taken when the juror appears and before he is sworn to try the cause; but the court may for cause permit it to be taken after the juror is sworn and before the jury is completed. [C. L. § 5016. Cal. Pen. C. 1068. 4829. Peremptory challenge defined. A peremptory challenge can be taken by either party, and may be oral. It is an objection to a juror for which no reason need be given, but upon which the court must exclude him. [C. L. § 5017. Cal. Pen. C. 2 1069. 4830. Id. Number allowed the defendant and the state. The defendant and the state shall each be entitled to peremptory challenges as follows: 1. If the offense charged is punishable with death or by imprisonment for life, to the number of fifteen. 2. If the offense charged is a felony other than those above mentioned, to the number of five. 3. § 5018*. If the offense charged is a misdemeanor, to the number of three. [C. L. Cal. Pen. C. 1070: Mont. Pen. C. 2044*. 4831. Challenge for cause. General or particular. A challenge for cause may be taken by either party. It is an objection to a particular juror, and is either: General, that the juror is disqualified from serving in any case; or, 2. Particular, that he is disqualified from serving in the action on trial. [C. L. § 5019. 2. A want of any of the qualifications prescribed by law to render a person a competent juror. 3. Unsoundness of mind, or such defect in the faculties of mind or organs of the body as render him incapable of performing the duties of a juror. § 5020. Cal. Pen. C. 1072. [C. L. 4833. Particular cause of challenge for bias. A particular cause of challenge is: 1. For such a bias, as when the existence of the facts is ascertained, in judgment of law, disqualifies the juror, and which is known in this code as implied bias. 2. For the existence of a state of mind on the part of the juror which leads to a just inference, in reference to the case that he will not act with entire impartiality, which is known in this code as actual bias. [C. L. § 5021. Cal. Pen. C. 1073*. If the challenge is for actual bias the cause stated in the statute must be alleged. People v. Thiede, 11 U. 241; 39 P. 837: 159 U. S. 510. A challenge that "defen lant challenges for cause" is properly denied as being too general. Id. bias. Challenge stated as "for actual bias," without specifying the cause from which bias is to be inferred, is insufficient. People v. Hopt, 3 U. 396; 4 P. 250. Same case, 4 U. 247; 9 P. 407; 120 U. S. 430. 4834. Challenge for implied Grounds. A challenge for implied bias may be taken for all or any of the following causes, and for no other: 1. Consanguinity or affinity within the fourth degree to the person alleged to be injured by the offense charged, or on whose complaint the prosecution shall have been instituted, or to the defendant. 2. Standing in the relation of guardian and ward, attorney and client, master and servant, landlord and tenant, or debtor and creditor; or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution shall have been instituted, or in the employment of any of such parties. 3. Being the party adverse to the defendant in a civil action, or having complaint against or being accused by him in a criminal prosecution. 4. Having served on the grand jury which found the indictment, or on a |