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may be three referees or only one, and the method of their selection is provided for in the law. The referees, or the court commissioner, after hearing the case, must report to the court, and the decision or verdict thus reported will stand as the decision of the court, unless set aside for cause by the court.
4. Judgment and Execution. — The judgment in any case is the order of the court as to its final settlement and must of course be in harmony with the outcome of the trial. It may settle the title to a piece of land; may direct the payment of a certain sum of money, the relinquishment of certain property, or the fulfillment of a certain contract; may order that a certain act or enterprise be discontinued ; etc. In case the person against whom the judgment is directed refuses to comply with its requirement, the court, on request of the other party, issues a writ of execution, ordering the sheriff to see to its enforcement.
199. Appeals in Civil Cases. — After a judgment is rendered, but before it is executed, the losing party, upon certain definite grounds which are carefully specified in the law, may appeal to a higher court. The law contains minute provisions as to the time and method of taking an appeal. It must be on certain definite grounds; as, for example, that the judge in the lower court erred in admitting, or excluding, certain evidence, or in instructing the jury; or that the verdict of the jury, or the decision of the court, was not supported by the law and the evidence introduced at the trial. The proceedings in the higher court are based on the record of the case sent up from the court below. There is no jury and no witnesses are examined. The record is submitted and the arguments of the attorneys are presented. The court either affirms, modifies, or reverses the judgment of the lower court. If it reverses the judgment, it may order
a new trial or may settle the controversy forthwith by issuing an appropriate order or decree.
200. Kinds of Criminal Cases. — “A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, one of the following punishments: death, imprisonment, fine, removal from office, or disqualification to hold and enjoy any office of honor, trust, or profit in this state."i The law contains many prohibitions and commands, violations of which do not constitute crimes, because none of these punishments are attached to them ; but persons who are injured by such violations may obtain satisfaction through civil suits.
Crimes are divided into two classes: misdemeanors and felonies. “A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime is a misdemeanor." 2 From this definition it is seen that the class to which a crime belongs depends upon the punishment attached to it. This is a matter that rests with the legislature. In the Penal Code many crimes and their punishments are catalogued, but this is by no means a complete list, as many others are named and their punishments defined in other codes and in numerous statutes. The difference between the two classes is simply one of degree. To steal property worth fifty dollars, or less, is petty larceny, a misdemeanor ; but to steal property worth more than fifty dollars is grand larceny, a felony. All crimes resulting from the breaking of city and county ordinances are misdemeanors.
1 Penal Code, $ 15. 2 Ibid., § 17.
3 Provided that in taking the property neither "robbery" nor "burglary” is committed.
201. Steps in a Criminal Case. — The steps in a criminal case are as follows:
1. The Arrest.? — Any person may arrest a criminal whom he " catches in the act.? An officer may arrest a person who is suspected of crime, on suspicion, or on a warrant issued by a judge of any court. A judge will issue a warrant for the arrest of any person on complaint of a private individual, or an officer, to the effect that the person complained of has committed a crime. The complaint must be given under oath and must be supported by evidence. If the case is triable in an inferior court ($ 204, 3), the defendant is taken before any such court having jurisdiction, and the matter is disposed of as indicated in subdivisions 3, 4, and 5 of this section. If the case is triable in the superior court, it reaches that court through one of two preliminary steps which will be described in subdivisions 20 and 2b.
2a. The Examination: If the defendant is charged with felony or a misdemeanor that is triable in the superior court, he may be taken before the nearest justice of the peace in the county, or before any police judge having jurisdiction in the matter, for a preliminary examination. If the examination convinces the magistrate 4 that sufficient evidence cannot be obtained to convict the accused,
1 Penal Code, 8 811 seq.
2 The superior court has jurisdiction over all felonies, and over "high" misdemeanors; that is, misdemeanors subject to a punishment of imprisonment exceeding six months, or the payment of a fine exceeding $500. In some instances, however, police courts are given jurisdiction over all misdemeanors, as, for example, those of Los Angeles and Oakland. Such courts try “high” misdemeanors instead of sending them to the superior court.
3 Penal Code, $ 858 seq.
* The word magistrate signifies a judge or justice of the peace, who has power to examine persons accused of crimes and, when the evidence is found to be sufficient, to hold such persons to answer to the superior court, when that court has jurisdiction.
he orders his release; if it convinces him that sufficient evidence can be obtained, he holds the accused to answer before the superior court. The accused is admitted to bail," except when the crime is treason or murder, provided he is able to furnish the amount named by the magistrate. If he cannot furnish the bail required, or if the crime is treason or murder, he is committed to the custody of the sheriff until his case can be tried. After he is “ held to answer by the magistrate, he is tried in the superior court on a charge called an “information,” filed against him by the district attorney. The information sets forth the nature of the alleged crime and formally charges the accused with it.
2b. The Indictment? — Another method of bringing a person accused of a felony or a “high " misdemeanor before the superior court for trial is by indictment. An indictment is a formal accusation by a grand jury (§ 207) to the effect that a certain crime has been committed by a certain person. Instead of taking the accused before a justice of the peace or a police judge for a preliminary examination, the district attorney may take him before the grand jury. If the evidence convinces the grand jury of his guilt, it " finds an indictment against him, and he is then prosecuted in the superior court the same as if he had been held to answer by an inferior court. When an indictment is found, it is filed with the clerk of the superior court by the foreman of the grand jury. If the accused is not in custody, the clerk issues a bench warrant for his arrest, and if the offense is bailable, the superior court fixes the amount of bail.
1 See section 6, article I of the constitution. 2 Penal Code, 888 seq.
3 See section 8, article I of the constitution.
3. The Arraignment. — As soon as possible after the defendant is formally charged with the crime, he is arraigned; that is, he is brought into court, the information or indictment is read in his presence, a copy is given him, and he is asked to enter his plea. In reply, he may try to have the information or indictment set aside on technical grounds, or he may plead guilty or not guilty. If the plea is guilty, the court, either immediately or within a few days, pronounces judgment upon him. If the plea is not guilty, the case is tried at once, or a time for the trial is set.
4. The Trial.? — If the crime is a felony, the trial must be by a jury of twelve; if it is a misdemeanor, it must be by a jury of twelve or a smaller number, unless both the prosecution and the defense agree upon a trial by the judge of the court.3 A trial by the judge consists of the examination of witnesses, the arguments of the attorneys,' and the decision as to the guilt or innocence of the accused; a trial by jury consists of the selection of the jury, the examination of witnesses, the arguments of the attorneys, the judge's instructions to the jury, and the verdict. The verdict must be by a unanimous vote of the jury. If the jury fails to agree, the case is as if it had not been tried; a new jury must be selected, and the whole process repeated, unless the court, on motion of the prosecution, dismisses the
5. Judgment and Execution. — The judgment is the sentence imposed by the judge. If the crime is a felony, the penalty will be death or imprisonment in one of the state
1 Penal Code, $ 976 seq.
* The accused is always entitled to the assistance of counsel. If he is unable to employ an attorney, the court will appoint one to defend him.