3. For inveigling, enticing, or taking away an unmarried female of previous chaste character, under the age of twenty-five years, for the purpose of prostitution; or, 4. For taking away any female under the age of sixteen years from her father, mother, guardian, or other person having the legal charge of her person, without their consent, either for the purpose of concubinage or prostitution; -Is in the county in which the offense is committed, or out of which the person upon whom the offense was committed may, in the commission of the offense, have been brought, or in which an act was done by the defendant in instigating, procuring, promoting, or aiding in the commission of the offense, or in abetting the parties concerned therein. [Amendment, approved April 9, 1880; Amendments 1880, 11 (Ban. ed. 156); took effect immediately.] Kidnaping: Sec. 207, note. Enticing away children: Sec. 278. Enticing away unmarried female: Secs. 266, 267, and notes. 785. Jurisdiction of indictment for bigamy or incest. SEO. 785. When the offense, either of bigamy or incest, is committed in one county and the defendant is apprehended in another, the jurisdiction is in either county. 786. When property feloniously taken in one county and brought into another. SEO. 786. When property taken in one county by burglary, robbery, larceny, or embezzlement, has been brought into another, the jurisdiction of the offense is in either county. But if at any time before the conviction of the defendant in the latter, he is indicted in the former county, the sheriff of the latter county must, upon demand, deliver him to the sheriff of the former. be admitted: People v. Mellon, 40 Id. 654; State v. Brown, 8 Nev. 212. In construing this section in People v. Valenzuella, 6 Pac. C. L. J. 561, it was held that a person cannot be said to commit a new larceny in every county through which he leads or carries stolen property, and that this section, which authorizes a trial in the county to which the property has been brought authorizes such trial when the property has been taken by larceny" in another county, and contemplates a complete offense in such other county. See also People v. Murphy, 51 Cal. 376. Property feloniously taken in one County and brought into another: See sec. 27, subd. 2, and note. Goods stolen in one county and sold in another to a person knowing them to be stolen, the courts of the first county have no jurisdiction to punish the offense of the receiver: People v. Stakem, 40 Cal. 599. So where a person has stolen property in one county and taken it into another, it is proper to charge him with having committed the offense in the latter county; and when the venue is laid in that county, the facts showing the property to have been taken in the other county need not be averred, but evidence Bringing stolen property into the state: showing that the property was so taken may See sec. 789. 787. Jurisdiction of criminal action for escaping from prison. SEC. 787. The jurisdiction of a criminal action for escaping from prison is in any county of the state. [Amendment, approved April 9, 1880; Amendments 1880, 11 (Ban. ed. 156); took effect immediately.] The words "criminal action" are here substituted for the word "indictment "in the original. 788. Jurisdiction of criminal action for treason committed out of state. SEC. 788. The jurisdiction of a criminal action for treason, when the overt act is committed out of the state, is in any county of the state. [Amendment, approved April 9, 1880; Amendments 1880, 11 (Ban. ed. 156); took effect immediately.] Similar amendment as in last section. Crime committed by person out of state: Sec. 27, subd. 2, and note. Penal laws, operation of: Sec. 778, note. 789. Jurisdiction of criminal action for stealing, etc., property out of state and bringing it therein. SEC. 789. The jurisdiction of a criminal action for stealing in any other state the property of another, or receiving it, knowing it to have been stolen, and bringing the same into this state, is in any county into or through which such stolen property has been brought. [Amendment, approved April 9, 1880· Amendments 1880, 11 (Ban. ed. 157); took effect immediately.] recognized, but a directly opposite one has Similar amendment as in section 787. Stealing property without and bringing it within the state.-This section settles a much-vexed question, and one upon which the authorities are irreconcilably opposed to each other. In England, at an early date, where goods were seized piratically on the ocean and carried by the thief into that country, the common-law judges refused to entertain jurisdiction of the larceny because "the original act, namely, the taking of them, was not any offense whereof the common law taketh knowledge; and, by consequence, the bringing of them into a county could not make the same felony punishable by our law:" Butler's Case, cited 13 Co. 53. This doctrine was subsequently in England applied to goods stolen, both in other parts of the king's dominions and in foreign countries. And it has also been followed by the courts of many of the United States: 1 Bish. Crim. L., sec. 141, and cases there cited. In other states the English rule has not been 790. Jurisdiction of criminal action for murder, etc., where injury inflicted in one county and party dies out of that county. SEO. 790. The jurisdiction of a criminal action for murder or manslaughter, when the injury which caused the death was inflicted in one county, and the party injured dies in another county or out of the state, is in the county where the injury was inflicted. [Amendment, approved April 9, 1880; Amendments 1880, 11 (Ban. ed. 157); took effect immediately.] Similar amendment as in section 787. Jurisdiction of an indictment for mur. der. This section conforms to the rule adopted in England and some of the United States, that a homicide is committed in the county where the blow is inflicted, though the death takes place elsewhere, and that jurisdiction to punish such offense is in the county where the blow is inflicted: 1 Bish. Crim. L., sec. 113; 791. Of an indictment against accessary. Grosvenor v. St. Augustine, 12 East, 244; State v. Carter, 27 N. J. L. 499; Riley v. State, 9 Humph. 646; 1 Bish. Crim. Proc., secs. 51, 52; People v. Gill, 6 Cal. 637; but see Tyler v. People, 8 Mich. 320; Commonwealth v. Macloon, 101 Mass. 1. Venue in assault to murder is where act is committed: See People v. Lock Wing, 61 Cal. 380. SEC. 791. In the case of an accessary in the commission of a public offense, the jurisdiction is in the county where the offense of the accessary was committed, notwithstanding the principal offense was committed in another county. See People v. Stakem, 40 Cal. 599. 792. Jurisdiction in cases of principals who are not present, etc., at commission of principal offense. SEC. 792. The jurisdiction of a criminal action against a principal in the commission of a public offense, when such principal is not present at the commission of the principal offense, is in the same county it would be under this code if he were so present and aiding and abetting therein. [Amendment, approved April 9, 1880; Amendments 1880, 11 (Ban. ed. 157); took effect immediately.] Similar amendment as in section 787. 793. Conviction or acquittal in another state a bar, where jurisdiction concurrent. SEC. 793. When an act charged as a public offense is within the jurisdiction of another state or country, as well as of this state, a conviction or acquittal thereof in the former is a bar to the prosecution or indictment therefor in this state, 794. Conviction or acquittal in another county a bar, where jurisdiction con current. SEC. 794. When an offense is within the jurisdiction of two or more counties, a conviction or acquittal thereof in one county is a bar to a prosecution or indictment therefor in another. 795. Jurisdiction on violation of law relating to prize-fights. SEC. 795. The jurisdiction of a violation of sections four hundred and twelve, four hundred and thirteen, and four hundred and fourteen of the Penal Code, or a conspiracy to violate either of said sections, is in any county: or, 1. In which any act is done toward the commission of the offense; or, 2. Into, out of, or through which the offender passed to commit the offense; 3. Where the offender is arrested. [New section, approved March 7, 1874; Amendments 1873-4, 466; took effect sixtieth day after passage.] CHAPTER II. OF THE TIME OF COMMENCING CRIMINAL ACTIONS. 799. Prosecution for murder may be commenced at any time. SEC. 799. There is no limitation of time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed. No limitation for prosecutions for murder.-As against the crime of murder there is no limitation, whether it be of the first or second degree: People v. Haun, 44 Cal. 96. Interposing statute of limitation by de murrer: See an article by F. F. Heard in 1 Crim. Law Mag. 451, criticising and questioning the doctrine of United States v. Cook, 17 Wall. 168, that the statute of limitations cannot be taken advantage of by demurrer. 800. Limitation of three years in all other felonies. SEC. 800. An indictment for any other felony than murder must be found or an information filed within three years after its commission. [Amendment, approved April 9, 1880; Amendments 1880, 12 (Ban. ed. 157); took effect immediately.] The amendment introduced the words "or an information filed." Indictment must show that offense is not barred. The indictment must show that the offense charged is not barred by lapse of time, and if such offense is one capable of being divided into degrees, the indictment should show that no degree is barred: People v. Miller, 12 Cal. 291. 801. Limitation of one year in misdemeanors. SEC. 801. An indictment for any misdemeanor must be found or an information filed within one year after its commission. [Amendment, approved April 9, 1880; Amendments 1880, 12 (Ban. ed. 157); took effect immediately.] Similar amendment as in section 800. Larceny of horse not within this section: People v. Salorse, 62 Cal. 139; and see People v. Leehey, 4 Pac. C. L. J. 75. Assault with deadly weapon with intent to inflict great bodily injury is not within the bar of this section; the offense is a felony: People v. Helbing, 59 Cal. 567. 802. Exception when defendant is out of the state. SEO. 802. If, when the offense is committed, the defendant is out of the state, the indictment may be found or an information filed within the term herein limited after his coming within the state, and no time during which the defendant is not an inhabitant of or usually resident within this state is part of the limitation. [Amendment, approved April 9, 1880; Amendments 1880, 12 (Ban. ed. 157); took effect immediately.] is relied upon, the state should set it up: People v. Miller, 12 Cal. 295; State v. Bockwith, 1 Stew. 318; Shelton v. State, 1 Stew. & P. 208; 1 Ch. Crim. L. 253; People v. Montejo, 18 Cal. 38:" Commissioners' note. Similar amendment as in section 800. "The statute excludes from computation the time the defendant may be out of the state, but the rule is that this exception must be stated in the pleading. Prima facie lapse of time is a good defense, and if the statutory exception 803. Indictment found, when presented and filed. SEC. 803. An indictment is found within the meaning of this chapter when it is presented by the grand jury in open court, and there received and filed. SEC. 806. The complaint is the allegation in writing made to a court or magistrate that a person has been guilty of some designated offense. [Amendment, approved April 9, 1880; Amendments 1880, 12 (Ban. ed. 157); took effect immediately.] Changes in head-notes.-The legislature of 1880 changed the name of the "allegation in writing," mentioned in this section, from "the information" to "the complaint." No 807. Magistrate defined. change was made, however, in the head-note to chapter 3 of title 3, of which section 806 is a part. As to the importance of head-notes, see sec. 4, and note, ante. SEO. 807. A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense. "The definition of the term 'magistrate,' as used throughout this code, is here given to save unnecessary repetition of the official names of 808. Who are magistrates. the officers who come within this description:" Commissioners' note. SEO. 808. The following persons are magistrates: 1. The justices of the supreme court; 2. The judges of the superior court; 3. Justices of the peace; 4. Police magistrates in towns or cities. [Amendment approved March 12, 1880; Amendments 1880, 7 (Ban. ed. 27); took effect immediately.] Magistrates.-In Ex parte Granice, 51 Cal. 375, decided prior to the amendment of this section, it was held that district judges were magistrates, vested with authority to hold accused persons to answer; also in Ex parte Walsh, 39 Id. 705. 809. Filing information after examination and commitment. SEO. 809. When a defendant has been examined and committed, as provided in section eight hundred and seventy-two of this code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable an information charging the defendant with such offense. The information shall be in the name of the people of the state of California, and subscribed by the district attorney, and shall be in form like an indictment for the same offense. [New section, approved April 9, 1880; Amendments 1880, 12 (Ban. ed. 157); took effect immediately.] Information, prosecution by.-Section 8 of article 1 of the present constitution of this state provides that "offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination And commitment by a magistrate, or by indict ment, with or without such examination and commitment, as may be prescribed by law." In pursuance of this provision, the legislature of 1880 enacted section 809, providing for prosecutions by information. În Kalloch v. Superior Court, 56 Cal. 229, it was urged that to proceed against a person by information instead of by indictment, for a criminal offense, was to deprive him of his life or liberty without due process of law; and that therefore the provision of the state constitution above quoted was in conflict with section 1, article 14, of the constitution of the United States, and consequently invalid. This objection was regarded by the court as untenable, and it was held "that this proceeding, as it was regulated by the constitution and laws of this state, is not opposed to any of the definitions given of the phrases due process of law' and the law of the land;' but on the contrary, it is a proceeding strictly within such definition, as much so in every respect as in a proceeding by indictment. It may be questionable whether the proceeding by indictment secures to the accused any superior rights and privileges; but certainly a prosecution by information takes from him no immunity or protection to which he is entitled under the law. But the constitution of this state has made provision for this form of prosecution, and the legislature has furnished the machinery to enforce it. In our opinion, the proceeding is a legal and constitutional The validity of such proceeding is also recognized in other states of the Union: State v. Keyes, 8 Vt. 57; Commonwealth v. Waterborough, 5 Mass. 257; Whiting v. State, 14 Conn. 487; Washburn v. People, 10 Mich. 385; Rowan v. State, 30 Wis. 129; State v. Welch, 37 Id. 196. The whole subject is fully examined, and the constitutionality of the California procedure in this regard upheld, in Hurtado v. People, 110 U. S. 516. Misdemeanors and other offenses not capital nor infamous may be prosecuted by information in the national courts: one. United States v. Waller, 1 Saw. 701; United States v. Shepard, 1 Abb. 431. But after the repeal of a statute requiring punishment for its violation to be by indictment, an offense committed before the repeal cannot sustain a prosecution by information: People v Tisdale, 57 Cal. 104. Before, however, a person can be prosecuted by information, he must have been examined and committed by one of the persons named as magistrates in the preceding section; but it is not necessary to aver in the information that the defendant has been so examined and committed: People v. Shubrick, 57 Cal. 555. The pendency of one information does not prevent another from being filed for the same offense: Kalloch v. Superior Court, 56 Id. 229. It is not necessary for the district attorney to state that he informs under his oath of office: State v. Sickle, Brayt. 132. If verified, it may be upon information and belief: State v. Montgomery, 8 Kan. 355; Washburn v. People, 10 Mich. 385; but see Vannatta v. State, 31 Ind. 210; Vogel v. State, Id. 64. In Kentucky an information cannot be amended: Commonwealth v. Rodes, 1 Dana, 595; but in this state the right to amend is impliedly recognized by section 1009, post. In other states it may be amended: State v. Stebbins, 29 Conn. 464; State v. Weare, 38 N. H. 314. After the examination spoken of in section 809, it is left to the discretion of the district attorney to prosecute either by indictment or information. The provisions of this code equally apply to one as to the other: People v. Carlton, 57 Cal. 559. CHAPTER IV. THE WARRANT OF ARREST. 811. Examination of prosecutor and witnesses upon information. SEC. 811. When an information is laid before a magistrate of the commission of a public offense, triable within the county, he must examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them. Magistrates defined: See sec. 808. In Ex parte Granice, 51 Cal. 375, the supreme court held that a district judge was a magistrate, vested with authority to hold accused persons to answer. Deposition within the meaning of this section. The ordinary meaning given to the word "deposition" is evidence given by a witness by question and answer, written down by an official person. The universal practice under the above section is, however, to require no more of the informant or prosecutor than an affidavit or verified complaint, charging the commission of the offense, and that the accused is guilty. It seems that the affidavit will be sufficient if it charge in positive terms, as within the knowledge of the deponent, the 812. Deposition, what to contain. commission of the offense, and proceed upon information only as to the person guilty of perpetrating the offense: People v. Smith, 1 Cal. 9. So in People v. Velarde, 59 Id. 457, it seems that an affidavit was the foundation of the issuing of the order of arrest, and the court there say, in explaining the object of the statute provision regarding warrants of arrest, that the regularity of the proceeding by information did not therefore depend, in any manner, upon the affidavit on which the warrant of arrest was issued, and had no connection with it." Non-compliance with these provisions does not affect the question of jurisdiction: Murphy v. Superior Court, 58 Cal. 520. As to examination on commission, see post, secs. 1349 et seq. SEO. 812. The deposition must set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the offense and the guilt of the defendant. |