SEC. 1436. The same challenges may be taken by either party to the panel of jurors, or to any individual juror, as on the trial of an indictment for a misdemeanor; but the challenge must in all cases be tried by the court. Challenge, what is: Sec. 1055, note. 1437. Oath of jurors. Challenge to the panel of jurors: Sec. 1058. Number of peremptory challenges: Sec. 1070. SEC. 1437. The court must administer to the jury the following oath: "You do swear that you will well and truly try this issue between the people of the state of California and A B, the defendant, and a true verdict render according to the evidence." 1438. Trial, how conducted. SEC. 1438. After the jury are sworn, they must sit together and hear the proofs and allegations of the parties, which must be delivered in public and in the presence of the defendant. Conduct of the trial: Sec. 1093, and notes. Presence of defendant at the trial: Sec. 1434, notes. 1439. Court to decide questions of law, but not charge in respect to matters of fact. SEC. 1439. The court must decide all questions of law which may arise in the course of the trial, but can give no charge with respect to matters of fact. Questions of law: See secs. 1124, 1126, in notes. Court must declare the law: Sec. 1093, subd. 6, note. Duty of court in charging the jury: Sec. 1127. 1440. Jury may decide in court or retire. Instructions: Sec. 1127, note. Questions of fact.-Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law: Const. Cal., art. 6, sec. 19. In case of libel: See secs. 251, 1125. SEC. 1440. After hearing the proofs and allegations, the jury may decide in court, or may retire for consideration. If they do not immediately agree, an officer must be sworn to the following effect: "You do swear that you will keep this jury together in some quiet and convenient place; that you will not permit any person to speak to them, nor speak to them yourself, unless by order of the court, or to ask them whether they have agreed upon a verdict; and that you will return them into court, when they have so agreed, or when ordered by the court." Deliberations of the jury: Sec. 1128. 1441. Verdict, how delivered and entered. SEC. 1441. The verdict of the jury must in all cases be general. When the jury have agreed on their verdict, they must deliver it publicly to the court, who must enter, or cause it to be entered, in the minutes. 1442. Verdict when several defendants tried together. SEC. 1442. When several defendants are tried together, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the rest may be tried by another jury. Verdict as to one of several defendants: Sec. 1160. 1443. Jury, when to be discharged without verdict. SEO. 1443. The jury cannot be discharged after the cause is submitted to them, until they have agreed upon and rendered their verdict, unless for good cause the court sooner discharges them. Discharge of jury by consent: Sec. 1140, Discharge, when acquittal or jeopardy: Secs. 687, note, 1139, note. note. 1444. If discharged, defendant may be tried again. SEC. 1444. If the jury is discharged, as provided in the last section, the court may proceed again to the trial, in the same manner as upon the first trial, and so on, until a verdict is rendered. Jeopardy: Sec. 687, note. Retrial: Sec. 1141. 1445. Proceedings on plea of guilty, or on certiorari. SEC. 1445. When the defendant pleads guilty or is convicted, either by the court or by a jury, the court must render judgment thereon of fine or imprisonment, or both, as the case may be. [Amendment, approved March 30, 1874; Amendments 1873-4, 453; took effect July 1, 1874.] Judgment, rendition of: Sec. 1202, note. Judgment, form of: Sec. 1202, note. Judgment to be certain and definite: Sec. 1202, note. 1446. Fine or imprisonment. Judgment, void and voidable: Sec. 1202, note. Judgment, arrest of: Secs. 1185, 1186, note. SEC. 1446. A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, in the proportion of one day's imprisonment for every dollar of the fine. [Amendment, approved March 7, 1874; Amendments 1873-4, 455; took effect sixtieth day after passage.] Judgment of fine: Sec. 1205, note. Form of judgment.-This section should be considered with the previous one in drawing a judgment of fine and imprisonment: Ex parte Baldwin, 60 Cal. 433, where a proper form is indicated by the court. 1447. Defendant, on acquittal, to be discharged. SEC. 1447. When the defendant is acquitted, either by the court or by the jury, he must be immediately discharged; and if the court certify in the minutes that the prosecution was malicious or without probable cause, it may order the prosecutor to pay the costs of the action, or to give satisfactory security by a written undertaking, with one or more sureties, to pay the same within thirty days after the trial. 1448. Judgment against prosecutor for costs. SEC. 1448. If the prosecutor does not pay the costs, or give security therefor, the court may enter judgment against him for the amount thereof, which may be enforced in all respects in the same manner as a judgment rendered in a civil action. 1449. Judgment, where to be rendered. SEC. 1449. After a plea or verdict of guilty, or after a verdict against the defendant, on a plea of a former conviction or acquittal, the court must appoint a time for rendering judgment, which must not be more than two days nor less than six hours after the verdict is rendered, unless the defendant waive the postponement. If postponed, the court may hold the defendant to bail to appear for judgment. [Amendment, approved March 30, 1874; Amendments 1873–4, 454; took effect July 1, 1874.] 1450. When defendant may move for new trial or in arrest of judgment. SEC. 1450. At any time before judgment, defendant may move for a new trial or in arrest of judgment. Motion for new trial: Sec. 1182, note. Motion in arrest of judgment: Secs. 1185, 1452. 1451. New trial, grounds of. SEC. 1451. A new trial may be granted in the following cases: 1. When the trial has been had in the absence of the defendant, unless he voluntarily absent himself, with full knowledge that a trial is being had; 2. When the jury has received any evidence out of court; 3. When the jury has separated without leave of the court, after having retired to deliberate upon their verdict, or been guilty of any misconduct tending to prevent a fair and due consideration of the case; 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors; 5. When there has been error in the decision of the court, given on any question of law arising during the course of the trial; 6. When the verdict is contrary to law or evidence; 7. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial; but when a motion for a new trial is made upon this ground, the defendant must produce at the hearing the affidavits of the witnesses by whom such newly discovered evidence is expected to be given. 1452. Grounds of motion in arrest of judgment. SEO. 1452. The motion in arrest of judgment may be founded on any substantial defect in the complaint, and the effect of an arrest of judgment is to place the defendant in the same situation in which he was before the trial was had. Arrest of judgment on defendant's motion: Sec. 1185, note. 1453. Judgment to be entered in the minutes. SEC. 1453. If the judgment is not arrested, or a new trial granted, judgment must be pronounced at the time appointed and entered in the minutes of the court. Judgment, rendition of: Secs. 1202, note, 1445. 1454. If judgment of acquittal or imposing fine only, defendant to be discharged. SEC. 1454. If judgment of acquittal is given, or judgment imposing a fine only, without imprisonment, for non-payment, and the defendant is not detained any other legal cause, he must be discharged as soon as the judgment is given. for 1455. Judgment of imprisonment, how executed. SEC. 1455. When a judgment of imprisonment is entered, a certified copy thereof must be delivered to the sheriff, marshal, or other officer, which is a sufficient warrant for its execution. Execution: See secs. 1213, and note, and 1216. 1456. Judgment that defendant be imprisoned until he pay fine, how executed. SEO. 1456. When a judgment is entered imposing a fine, or ordering the defendant to be imprisoned until the fine is paid, he must be held in custody during the time specified in the judgment, unless the fine is sooner paid. Execution of judgment of fine or imprisonment: Sec. 1215. 1457. Fines, disposition of. SEC. 1457. Upon payment of the fine, the officer must discharge the defendant, if he is not detained for any other legal cause, and apply the money to the payment of the expenses of the prosecution, and pay over the residue, if any, within ten days, to the county or city treasurer, according as the offense is prosecuted in a justice's or police court. If a fine is imposed, and paid before commitment, it must be applied as prescribed in this section. Disposition of fines: Sec. 1570. If the judgment impose a fine without costs, or if a fine be collected, but the costs imposed by the judgment be not collected, in either case the costs of the officers are to be paid out of the 1458. Defendant may be admitted to bail. fine collected: Petty v. County Court San Joaquin Co., 45 Cal. 245; Co. of Los Angeles v. City of Los Angeles, 3 West Coast Rep. 441; Los Angeles v. Morgan, Id. 444. SEC. 1458. The defendant, at any time after his arrest, and before conviction, may be admitted to bail. The provisions of this code relative to bail are applicable to bail in justices' or police courts. Bail: Secs. 822, 1268. 1459. Subpoenas. SEC. 1459. The justice or judge of either of the courts mentioned in this chapter may issue subpoenas for witnesses, as provided in section thirteen hundred and twenty-six, and punish disobedience thereof, as provided in section thirteen hundred and thirty-one. Witness must attend: Sec. 2064, Code Civ. Proc. 1460. Entitling affidavits. SEC. 1460. The provisions of section fourteen hundred and one, in respect to entitling affidavits, are applicable to proceedings in the courts mentioned in this chapter. 1461. Police courts defined. SEC. 1461. The term "police courts," as used in this and the succeeding chapter, includes police judges' courts, police courts, and all courts held by mayors or recorders in incorporated cities or towns. CHAPTER II. APPEALS TO SUPERIOR COURTS. 1466. Appeals, when allowed. SEO. 1466. Either party may appeal to the superior court of the county from a judgment of a justice's or police court, in like case and for like cause as appeals may be taken to the supreme court. [Amendment, approved April 12, 1880; Amendments 1880, 34 (Ban. ed. 201); took effect immediately.] Appeal by defendant: Sec. 1237, and note. Appeal by the people: Sec. 1238, and note. 1467. Appeals, how taken, heard, and determined. SEC. 1467. The appeal is taken, heard, and determined as provided in Title IX., Part II., of this code. Appeal, how taken: Sec. 1240, and note. Judgment on appeal: Sec. 1258, and note. 1468. Statement on appeal. SEC. 1468. The appeal to the superior court from the judgment of a justice's or police court is heard upon a statement of the case settled by the justice or police judge, embodying such rulings of the court as are excepted to, which statement must be filed with and settled by the court within ten days after filing notice of appeal. [Amendment, approved April 12, 1880; Amendments 1880, 34 (Ban. ed. 201); took effect immediately.] Transcript on appeal: Sec. 1246, note. Statement, when unnecessary.-A statement of the case is unnecessary if the plead ings and docket show the error relied on: People v. Maguire, 26 Cal. 635. 1469. If new trial granted, in what court had. SEC. 1469. If a new trial is granted upon appeal, it must be had in the superior court. [Amendment, approved April 12, 1880; Amendments 1880, 35 (Ban. ed. 201); took effect immediately.] New trial, where had: See People v. Maguire, 26 Cal. 635. 1470. Proceedings if appeal dismissed or judgment affirmed. SEC. 1470. If the appeal is dismissed or the judgment affirmed, a copy of the order of dismissal or judgment of affirmance must be remitted to the court below, which may proceed to enforce its sentence. Remittitur: Sec. 1264, note. Power of appellate court after remittitur: Sec. 1265, note; see Ex parte Toland, 54 Cal. 344. TITLE XII. OF SPECIAL PROCEEDINGS OF A CRIMINAL NATURE. CHAPTER I. OF THE WRIT OF HABEAS CORPUS..... II. OF CORONERS' INQUESTS AND DUTIES OF CORONERS. III. OF SEARCH-WARRANTS...... IV. PROCEEDINGS AGAINST FUGITIVES FROM JUSTICE. V. MISCELLANEOUS PROVISIONS RESPECTING SPECIAL PROCEEDINGS CHAPTER I. 1473 1510 1523 1547 1562 OF THE WRIT OF HABEAS CORPUS. 1473. Who may prosecute writ. SEC. 1473. Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint. [Amendment, approved March 30, 1874; Amendments 1873-4, 454; took effect July 1, 1874.] Nature of the writ.-The writ of habeas refusal of the process, as well as the subsefor the summary vindication of the right of law, and not of discretion: Ex parte Milligan, corpus is that legal process which is employed quent disposition of the prisoner, is matter of personal liberty when illegally restrained. It 4 Wall. 2. is directed to the person detaining another, Privilege of, not to be suspended.—The and commands him to produce the body of the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require its day and cause of his caption and detention, to submit to and receive whatsoever the court or suspension: Const. Cal., art. 1, sec. 5; U. S. judge awarding the writ might consider in that Const., art. 1, sec. 9. The power to suspend behalf: Hurd on Habeas Corpus, 2d ed., 129. being thus conceded, the question then arises, The presentation of a petition for a writ of To which department of the government is its habeas corpus is the institution of a cause on exercise intrusted? On the one hand, it has been contended that suspending the privilege |