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people, and each party must exhaust all his challenges before

the other begins.

1. Challenges, Order of.-People v. Scoggins, 37 Cal. 676; People v. Russell, 46 Id. 121; People v. Iams, 6 Pac. C. L. J. 882.

1087. The challenges of either party for cause need not all be taken at once, but they must be taken separately, in the following order, including in each challenge all the causes of challenge belonging to the same class:

1. To the panel.

2. To an individual juror, for a general disqualification.

3. To an individual juror, for an implied bias.

4. To an individual juror, for an actual bias.

1 Challenges, How Taken.-Sec. 1073, n. 3.

2. Challenges, Order of. Sec. 1086, n. 1, 1068, n. 2.

1088. If all challenges on both sides are disallowed, either party, first the people, and then the defendant, may take a peremptory challenge, unless the parties' peremptory challenges are exhausted.

1. Examination of Jurors.-Each party has a right to put questions to a juror, to show not only that there exist proper grounds for a challenge for cause, but to elicit facts to enable the party to decide whether or not he will make a peremptory challenge. People v. Car Soy, 6 Pac. C. L. J. 880; People v. Han Tiu, Id. 866. Where the prosecution passed the panel to the defendant, who declined to make any challenge, the prosecution may be permitted to interpose a peremptory challenge to one of the panel. People v. McCarty, 48 Id. 558.

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1094. When order of trial may be departed from.

1095. Number of counsel who may argue the case to the jury. 1096. Defendant presumed innocent until the contrary is proved.

Reasonable doubt.

1097. When reasonable doubt as to degree, he can be convicted only of lowest.

1098. Separate trials.

1099. Discharging one of several defendants before verdict, that he may be a witness.

1100. Same.

1101. Effect of such discharge.

1102. Rules of evidence in civil applicable to criminal cases,

except, etc.

1103. Evidence on trial for treason.

1104. Evidence on trial for conspiracy.

SECTION 1105. When burden of proof shifts in trials for murder. 1106. Evidence on a trial for bigamy.

1107. Evidence upon a trial for forging bank bills, etc. Experts. 1108. Evidence upon trial for abortion and seduction.

1109. Evidence on a trial for selling, etc., lottery tickets.

1110. Evidence of false pretenses.

1111. Conviction can not be had on uncorroborated testimony of accomplice.

1112. Repealed.

1113. Court may discharge jury when it has not jurisdiction, etc. 1114. Proceedings, if jury discharged for want of jurisdiction of offense committed out of the state.

1115. Proceedings in such case, when offense committed in the state.

1116. Same,

1117. Proceedings, if jury discharged because the facts do not

constitute an offense.

1118. When evidence on either side is closed, court may advise
jury to acquit.

1119. View of premises, when ordered, and how conducted.
1120. Knowledge of juror to be declared in court, and he to be

sworn as a witness.

1121, Jurors may be permitted to separate during trial. If kept
together, oath of officer.

1122. Jury at each adjournment must be admonished, etc.
1123. Proceedings when juror becomes unable to perform his
duties.

1124. Court to decide questions of law arising during trial.
1125. On indictment of libel, jury to determine law and fact.
1126. In all other cases court to decide questions of law.

1127. Charging the jury.

1128. Jury may decide in court or retire in custody of officers.

Oath of officers.

1129. When defendant on bail appears for trial he may be com

mitted.

1130. If district attorney fails to attend, court may appoint.

1131. Proof required upon trial for embezzlement of money, etc.

1093. The jury having been impaneled and sworn, the trial must proceed in the following order, unless otherwise directed. by the court: .

1. If the indictment or information be for felony, the clerk must read it, and state the plea of the defendant to the jury, and in cases where it charges a previous conviction, and the defendant has confessed the same, the clerk in reading it shall omit therefrom all that relates to such previous conviction. In all other cases this formality may be dispensed with.

2. The district attorney, or other counsel for the people, must open the cause and offer the evidence in support of the charge.

3. The defendant or his counsel may then open the defense, and offer his evidence in support thereof.

4. The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original

case.

5. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the district attorney, or other counsel for the people, and counsel for the defendant, may argue the case to the court and jury; the district attorney, or other counsel for the people, opening the argument and having the right to close.

6. The judge may then charge the jury, and must do so on any points pertinent to the issue, if requested by either party; and he may state the testimony and declare the law. If the charge be not given in writing, it must be taken down by the phonographic reporter. [Amendment, approved April 9, 1880; in effect immediately.

1. Trials Generally. The trial court should adhere strictly to the provisions of the statute in respect to the mode of trial in criminal cases, rather than risk a reversal of the judgment by a deviation from the specific modes of procedure prescribed, even when the deviation does not seem to it material. People v. Arnold, 15 Cal. 476.

2. Subdivision 1-Reading Indictment or Information.-Failure of the clerk of the court to read the indictment and to state the defendant's plea to the jury, is not such error as will warrant a reversal of the judgment, it appearing that the jury were, from the commencement of the trial, fully informed of the precise charge against the defendant, and of the issue raised by his plea of not guilty. People v. Sprague, 53 Cal. 491.

3. Subdivision 2-Order of Introducing Evidence.--The mere order in which evidence is to be introduced upon the trial, rests in the discretion of the court trying the cause. People v. Shainwold, 51 Cal. 468. The defendant in a criminal action is as much bound to produce testimony to rebut testimony for the prosecution which merely tends to prove his guilt, as any other testimony introduced by the prosecution. People v. Kelly, 28 Id. 423.

4. Subdivision 5-Argument.-The argument of the case must be made when the evidence is concluded and not upon the case made out by the prosecution. People v. Williams, 43 Cal. 344. Counsel, as a general rule, are not allowed to read the law to the jury, but there are cases in which they may, by way of illustration, read to the jury reported cases or extracts from text-books, subject to the sound discretion of the court. People v. Anderson, 44 Id. 65. See People v. Keenan, 13 Id. 584. Courts may limit counsel to a reasonable time in presenting cases to juries. This discretion, which is necessarily an enlarged one, should be carefully exercised, and if ever done in capital cases, it should only be on very extraordinary and peculiar occasions. If the court imposes a limitation of time upon counsel, against their consent, it is done at the risk of a new trial. People v. Keenan, 13 Id. 581.

But see State v. Collins, 70 N. C. 241; S. C., 2 Green Crim. 739; Lee v. State, 51 Miss. 566, 569. When other counsel are associated with the district attorney in the prosecution of a criminal case, the court may, in its discretion, for good reason, allow the associate counsel to conclude the argument. People v. Strong, 46 Cal. 302; People v. Murphy, 47 Id. 104. It is irregular for counsel for the prosecution, against the objections of defendant's counsel, to comment in his argument to the jury upon the refusal of defendant to be crossexamined to the whole case; and for the court to permit it is erroneous. People v. McGungill, 41 Cal. 429.

5. Number of Counsel.-Sec. 1095.

6. Order of Argument.-Sec. 1095, n. 1.

7. Subdivision 6-State the Testimony and Declare the Law.It is the duty of the court to state the testimony to the jury, and to declare to them the law. Art. 6, sec. 19, State Constitution; People v. Ybarra, 17 Cal. 166. A judge other than the one who tried the case may, by consent, charge the jury and receive their verdict. People v. Henderson, 28 Id. 471. See People v. Hobson, 17 Id. 424.

8. Charging Juries upon Questions of Fact.-Judges have no right to charge juries with respect to matters of fact. The conclusions to be drawn from the evidence is the peculiar province of the jury, and the court or judge has no right to interfere with it by declaring what has or what has not been proved, nor by stating that the weight of evidence is in favor or against a given fact. State Constitution, art. 6, sec. 19; People v. Ybarra, 17 Cal. 166; People v. Ah Fung, 16 Id. 137; People v. Williams, 17 Id. 142; People v. Strong, 30 Id. 151; People v. Barry, 31 Id. 357; People v. Dick, 32 Id. 213; People v. Cotta, 49 Id. 166; People v. Walden, 51 Id. 588; People v. Buster, 53 Id. 612; People v. Carrillo, 54 Id. 63; People v. Wong Ah Ngow, Id. 151. Judges may determine and charge a jury whether there is any evidence with regard to an issue, or tending to sustain a fact on which a judgment may depend. People v. Welch, 49 Id. 174. So, if testimony has been introduced to prove a certain matter, the court may instruct the jury that testimony has been introduced tending to prove such matter. People v. Vasquez, 49 Id. 560. See sec. 1127, n. 1.

9. Oral Instructions.-The giving of an oral charge or instruction to the jury in a criminal case, without the defendant's consent, is error, and that consent can not be presumed from his presence and failure to make the objection when the oral instruction is given. People v. Beeler, 6 Cal. 246; People v. Demint, 8 Id. 423; People v. Woppner, 14 Id. 437; People v. Chares, 26 Id. 78; People v. Trim, 37 Id. 274; People v. Sanford, 43 Id. 29; People v. Prospero, 44 Id. 186; People v. Hersey, 53 Id. 574. If such instructions are given the error is not cured by subsequently offering to give them in writing. People v. Ah Fong, 12 Id. 345. By mutual consent the court may charge the jury orally. People v. Kearney, 43 Id. 383. On appeal the presumption is always that the instructions given were in writing, unless the contrary affirmatively appear. People v. Chung Lit, 17 Id. 320; People v. Garcia, 25 Id. 531; People v. Shuler, 28 Id. 496. Under this section instructions must be given in writing, or, if given orally, they must be taken down by the phonographic reporter. It is error per se to orally instruct the jury in the absence of the reporter. People v. Hersey, 53 Id. 574. When the record on appeal shows that oral instructions were given, it will be presumed that they were taken

down by the reporter, unless it otherwise appear. People v. Ferris, 6 Pac. C. L. J. 610. Where a jury have returned in court with a verdict, improper in form, the court may tell them verbally, that it is not in form, and direct them to retire and bring in a proper verdict. People v. Bonney, 19 Cal. 426.

1094. When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the court, the order prescribed in the last section may be departed from.

1. Discretion as to Order of Trial.-See People v. Fair, 43 Cal. 137. The court, in exercising its discretion, is not required to state any reasons therefor. The order of trial is a matter within the discretion of the court, and, on appeal, it will be presumed to have exercised its discretion wisely. People v. Haun, 44 Id. 95; People v. Strong, 46 Id. 302.

1095. If the indictment or information be for an offense punishable with death, two counsel on each side may argue the cause to the jury. If it be for any other offense, the court may, in its discretion, restrict the argument to one counsel on each side. [Amendment, approved April 9, 1880; in effect immediately.

1. Order of Argument.-Section 364 of the criminal practice act provided: "If the indictment be for an offense punishable with death, two counsel on each side may argue the cause to the jury, in which case they must do so alternately." Under that section, it was held, in People v. Fair, 43 Cal. 137, that in capital cases the accused has the right to be heard by two counsel, and that if argued by two on each side, they should alternate; that, under section 363 of criminal practice act (1094 of this code), the court might, in its discretion, direct which side should commence the argument to the jury, but by whichever side it was thus opened, the other was entitled to the close. The defendant may be required to open the argument. People v. Haun, 44 Id. 96. The court may permit more than two counsel to address the jury in capital cases, either on behalf of the defendant or the people. People v. Ah Wee, 48 Id. 236. Where defendant has broken jail and escaped he no longer has the right to be represented by counsel. People v. Redinger, 55 Id. 290.

2. Argument.-Sec. 1093, subd. 5, n. 4.

1096. A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.

1. Presumption of Innocence. In all criminal cases the guilt of the defendant must be established to a moral certainty and beyond all reasonable doubt. The law presumes every man innocent until the contrary is proven, and this presumption continues during the whole trial and until the jury determine otherwise. The definition of reasonable doubt as given by Shaw, C. J., in Com. v. Webster, 5 Cush. 320, is one generally quoted, and has been repeatedly recognized and indorsed as correct in this state. "It is that state of the case, which after the entire comparison and consideration of all

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