Oct. 19, 1864, Oct, 19, 1864, $ 145. Postponement and how allowed. Personal attendance at trial. -In all cases amounting to a felony the defendant must be personally present during the whole of his trial: People v. Kohler, 5 Cal. 72; People v. Higgins, 59 Id. 357. If, pending a trial for grand larceny, the defendant flees and cannot be found, the jury may be discharged and no jeopardy attaches: Id. During the progress of the trial the defendant is in the custody of the court and under the immediate control of and subject to the orders of the court: People v. Harrington, 42 Id. 168. Viewing the premises, by the jury, where the offense is alleged to have been committed is not a portion of the trial at which the defendant must be present: People v. Bonney, 19 Id. 426. Setting the time for defendant's trial during his absence has been held not error: State v. Abrams, 11 Or. 169. The mere fact that the record on appeal recites that the defendant was absent during a portion of the trial (for murder) is not sufficient to justify a re versal of the judgment: People v. Bealoba, 17 Cal. 389. The defendant must be present when the verdict is rendered, and it is error to receive the verdict in his absence: State v. Shores, 4 Or. 198. The court, in all trials for felonies, should promptly order him into actual custody at the commencement of the trial, or immediately upon the retirement of the jury to consider their verdict, regardless of his previous admission to bail: People v. Beauchamp, 49. Cal. 41. On the trial of misdemeanors the defendant need not be present, either personally or by attorney: People v. Ebner, 23 Cal. 159; People v. Budd, 57 Id. 349; Warren v. State, 19 Ark. 214; S. C., 68 Am. Dec. 214; State v. Reckards, 21 Minn. 47. Where there is no apparent necessity for so doing (as fear of escape), it is held to be error to keep the prisoner in fetters during his trial: State v. Smith, 11 Or. 205; State v. Kning, 1 Mo. App. 438; S. C., 64 Mo. 591; People v. Harrington, 42 Cal. 165. CHAPTER XIV. OF THE POSTPONEMENT OF TRIAL § 1344. Postponement of trial, when and how allowed. § 1345. May be refused unless party consent to take depositions of witness. Order for taking the deposition. § 1346. § 1348. § 1349. When court may order indictment discharged for want of prosecu tion. Effect of such discharge. § 1350. Proceeding upon discharge in relation to bail. § 1344. [145.] When an indictment is at issue upon a question of fact, and before the same is called for trial, of trial, when the court may, upon sufficient cause shown by the affidavit of the defendant, or the statement of the district attorney, direct the trial to be postponed to another day in the same term or to another term; and all affidavits and papers read on either side upon the application. must be first filed with the clerk. Oct. 19, 1864, 146. § 1345. [146.] When an application is made for the postponement of a trial, the court may, in its discretion and in the furtherance of justice, require as a condition $146. precedent to granting the same, that the party applying Oct. 19, 1864, therefor consent that the deposition of a witness or wit- Postponement nesses may be taken and read on the trial of the case, may be reand unless such consent be given, may refuse to allow such postponement for any cause. fused, unless party consent take deposition of witness. § 147. Order for tak § 1346. [147.] When such consent is given, the court Oct. 19, 1864, must make an order appointing some proper time and place for taking the deposition of such witness, either by ing deposition. the judge thereof or before some suitable person to be named therein, as commissioner, and upon either written or oral interrogatories. 148. Deposition to § 1347. [148.] Upon the making of the order pro- Oct. 19, 1864, vided in the last section, the deposition must be taken and filed in court, and may be read on the trial of the be filed, and case, in like manner and with like effect and subject to read. the same objections as in civil cases. when may be $ 149. When court indictment § 1348. [149.] If, when the indictment is called for Oct. 19, 1864, trial, the defendant appear for trial, and the district attorney is not ready and does not show any sufficient may order cause for postponing the trial, the court must order the discharged indictment to be discharged, unless, being of opinion prosecution. that the public interests require the indictment to be retained for trial, it direct it to be so retained. for want of charge, when notabar; when equivalent to acquittal. § 1349. [150.] If the court order the indictment to Id., § 150. be discharged, the order is not a bar to another action Effect of disfor the same crime, unless the court so direct; and if the court so direct, judgment of acquittal must be entered. § 1350. [151.] If, upon the discharge of the indict- 1a., § 151. ment, the court give a judgment of acquittal, the same Proceeding proceedings must be had thereon, in relation to the cus- in relation to tody of the defendant, his bail, or money deposited in fendant and lieu thereof, as are prescribed in section 1319 [128]. Postponement of trial: See the note to § 179 [177, Code Civ. Proc.], ante, p. 284. upon discharge custody of de bail. CHAPTER XV. OF THE FORMATION OF THE TRIAL JURY. Oct. 19, 1864, $152. Trial jury, how formed. Oct. 19, 1864, 153. Challenge for implied bias, for what may be taken. § 1353. § 1354. Challenges may be taken by either party, but defendants cannot sever in their challenge. Peremptory challenges, number of. § 1355. Sections 184 and 187 of Code of Civil Procedure not to apply. § 1351. [152.] In criminal actions, the trial jury is formed in the manner prescribed in title II. of chapter II. of the Code of Civil Procedure, except as otherwise expressly provided in this chapter. See the annotation to the sections in title 2, chapter 2, of the Code of Civil Procedure, ante, pp. 286 et seq. § 1352. [153.] A challenge for implied bias may be taken for 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 crime charged in the indictment, or the person indorsed thereon as the prosecutor, or to the defendant; 2. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, with the defendant, or the person alleged to be injured by the crime charged in the indictment, or indorsed thereon as prosecutor, or being a member of the family, a partner in business with, or in the employment on wages for, either of such persons, or being surety or bail in the action or otherwise for the defendant; 3. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment; 4. Having been one of a jury formerly sworn in the same action, and whose verdict was set aside, or which was discharged without a verdict, after the cause was submitted to it; 5. Having served as a juror in a civil action, suit, or proceeding brought against the defendant for substan- Oct. 19, 1864, tially the same act charged as a crime; $153. Challenge for for what may 6. If the offense charged be punishable with death, implied bias, the entertaining of such conscientious opinions as would be taken. preclude a person from finding the defendant guilty; in which case he shall neither be permitted nor compelled to serve as a juror. See the note to § 186 [184, Code Civ. Proc.], ante, p. 289. may be taken § 1353. [154.] All challenges, whether peremptory or Id., § 154. for cause, may be taken by the state or defendant, but Challenges when several defendants are tried together, they cannot but defend sever their challenges, but must join therein. ants cannot sever in their challenge. Dec. 19, 1865, challenges, § 1354. [155.] If the crime charged in the indictment be punishable with death or imprisonment in the $3. penitentiary for life, the defendant shall be entitled to Peremptory twelve and the state to six peremptory challenges, and number of. no more. And if the crime be punishable otherwise, the defendant shall be entitled to six and the state to only three such challenges. $156. § 1355. [156.] Sections 186 [184] and 189 [187] of the vet. 19, 1864, Code of Civil Procedure shall not apply to the formation of the trial jury in criminal actions. CHAPTER XVI. OF THE CONDUCT OF THE TRIAL, AND MISCELLANEOUS PRO- § 1356. Conduct of trial regulated by title 3 of chapter 2 of Code of Civil § 1357. Defendant presumed innocent until contrary proven; effect of rea sonable doubt. § 1358. Insanity must be proven; intoxication not to be deemed insanity. § 1359. Defendant to be convicted of the lowest degree in case of doubt. § 1360. When defendants jointly indicted, entitled to separate trial. § 1361. § 1362. § 1363. § 1364. When one of several defendants may be discharged as a witness for When one may be discharged to be a witness for defendant. The law of evidence in civil cases applies to criminal cases, except § 1365. Defendant can be witness. § 1366. Husband or wife can be witness for or against each other in certain cases. Evidence in criminal actions to be given orally, except. Confession of defendant, when evidence, and its effect. Error in proceedings not material unless it prejudice substantial rights of the defendant. § 1367. § 1368. § 1369. § 1370. Evidence on trial for rape or crime against nature. § 1373. § 1374. Evidence of female abducted or seduced must be corroborated. Oct. 19, 1864, 157. Conduct of trial. Oct. 19, 1864, 203. § 1375. Jury to receive the law from the court, and to decide the facts. § 1376. Defendant may be committed after appearance. § 1356. [157.] Title III. of chapter II. of the Code of Civil Procedure shall apply to and regulate the conduct of the trial of criminal actions. § 1357. [158.] A defendant in a criminal action is presumed to be innocent until the contrary be proven; of innocence. and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to be acquitted. Presumption Presumption of innocence: See § 776 [766, Code Civ. Proc.], ante, p. 585. Reasonable doubt. It is held in California that the hypothesis contended for by the prosecution must be established to an absolute moral certainty, to the entire exclusion of any rational probability of any other hypothesis being true: People v. Milgate, 5 Cal. 127; People v. Strong, 30 Id. 151; People v. Ah Chung, 54 Id. 398; People v. Anthony, 56 Id. 397; Feople v. Marshall, 59 Id. 386; People v. Ah Loy, 57 Id. 566. But in State v. Glass, 5 Or. 13, where an instruction to this effect was asked, the court refused to give it, on the ground that moral certainty is unattainable by the human mind. It is held that evidence is sufficient to establish guilt if it satisfies the jury of its truth beyond a reasonable doubt: State v. Ah Lee, 7 Id. 237. Upton, J., in State v. Conally, 3 Id. 73, defines reasonable doubt as follows: "A reasonable doubt is one that exists in the mind after a full and careful examination and comparison of all the evidence, and one that is consistent with the facts that are fully proved to the satisfaction of the jury. The doubt must not be an unreasonable one, nor a mere supposition inconsistent with the evidence which the jury credits and believes." The definition of reasonable doubt, as given by Shaw, C. J., in Commonwealth v. Webster, 5 Cush. 320, S. C., 52 Am. Dec. 730, is one generally quoted, and has been repeatedly recognized and indorsed as correct. "It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." See also Smith v. State, 74 Ill. 144, where it is said that the doubt must be substantial and well founded, and not a mere possibility. Evidence to remove the doubt would be such as would convince an ordinarily prudent man: McGregor v. State, 16 Ind. 9. The defendant is entitled to have the jury instructed "that in determining whether or not he was guilty beyond a reasonable doubt, his good reputatation as to traits involved in the charge, if proved, should be weighed as any other fact established, and that it might be sufficient to create a reasonable doubt as to his guilt ": People v. Doggett, 62 Cal. 27, 29, citing People v. Bell, 49 Id. 489; People v. Raina, 45 Id. 292. Circumstantial evidence: See the note |