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1829. Depositions to be taken before issuing; what de- 1837. When the testimony to be taken; how taken.

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1859. Order to bring prisoner from other county before 1865. To be recovered as costs; when county charges.

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Act of May 1, 1851, to regulate Proceedings in Criminal Cases:-[Took effect July 1, 1851. R. A. St. 1850, 275. [Sec. 1 simply divides the act into certain heads.]


ARTICLE 1383, Sec. 2. A crime or public offense is an act or omission forbidden by law, and to which is annexed, upon conviction, either of the following punishments: 1. Death. 2. Imprisonment. 3. Fine. 4. Removal from office; or, 5. Disqualification to hold or enjoy any office of honor, trust or profit under this


ART. 1384, Sec. 3. Public offenses are divided into: 1. Felonies; and 2. Misde


Sec. 4. A felony is a public offense, punishable with death, or by imprisonment in a state prison.

Sec. 5. Every other public offense is a misdemeanor.

Sec. 6. No person can be punished for a public offense, except upon legal conviction in a court having jurisdiction thereof.

Sec. 7. Every public offense must be prosecuted by indictment, except: 1. Where proceedings are had for the removal of civil officers of the state. 2. Offenses arising in the militia when in actual service, and in the land and naval forces in time of war, or which this state may keep, with the consent of congress, in time of peace. 3. Offenses tried in justices', recorders' and mayors' courts.

ART. 1385, Sec. 8. The proceedings by which a party charged with a public offense is accused and brought to trial and punishment, shall be known as a criminal action.

Sec. 9. A criminal action shall be prosecuted in the name of the people of the state of California, as a party, against the party charged with the offense.

Sec. 10. The party prosecuted in a criminal action is designated in this act as the defendant.

ART. 1386, Sec. 11. In a criminal action the defendant is entitled: 1. To a speedy and public trial. 2. To be allowed counsel as in civil actions, or he may appear and defend in person or with counsel; and 3. To produce witnesses on his behalf, and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily examined before a committing magistrate, and the testimony taken down by question and answer, in the presence of the defendant, who has, either in person or by counsel, crossexamined or had an opportunity to cross-examine the witness; or where the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally in the like manner in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, the deposition of such witness may be read upon its being satisfactorily shown to the court that he is dead or insane, or cannot, with due diligence, be found within the state.

ART. 1387, Sec. 12. No person shall be subject to a second prosecution for a public offense, for which he has once been prosecuted and duly convicted or acquitted.

ART. 1388, Sec. 13. No person shall be compelled, in a criminal action, to be a witness against himself, nor shall a person charged with a public offense be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge.

ART. 1389, Sec. 14. No person can be convicted of a public offense, unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon judgment against him upon a demurrer to the indictment in the case, mentioned in section two hundred and sixty-six.[293]


ART. 1390, Sec. 15. Lawful resistance to the commission of a public offense may be made: 1. By the party about to be injured. 2. By other parties.

Sec. 16. Resistance sufficient to prevent the offense may be made by the party about to be injured: 1. To prevent an offense against his person, or his family, or some member thereof. 2. To prevent an illegal attempt, by force, to take or injure property in his lawful possession.

Sec. 17. Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense.

ART. 1391, Sec. 18. Public offenses may be prevented by the intervention of the officers of justice: 1. By requiring surety to keep the peace. 2. By forming a police in cities and towns, and by requiring their attendance in exposed places. 3. By suppressing riots.

Sec. 19. Whenever the officers of justice are authorized to act in the prevention of public offenses, other persons, who by their command act in their aid, are justified in so doing.

ART. 1392, Sec. 20. A complaint may be laid before any of the magistrates mentioned in section one hundred and four, [103] that a person has threatened to commit an offense against the person or property of another.

Sec. 21. When the complaint is laid before the magistrate, he shall examine, on oath, the complainant and any witnesses he may produce, and shall take their depositions in writing, and cause them to be subscribed by the parties making


Sec. 22. If it appears, from the depositions, that there is just reason to fear the commission of the offense threatened by the person so complained of, the magis

trate shall issue a warrant, directed generally to the sheriff of the county, or any constable, marshal or policeman in the state, reciting the substance of the complaint, and commanding the officer forthwith to arrest the person complained of, and bring him before the magistrate.

ART. 1393, Sec. 23. When the person complained of is brought before the magistrate, if the charge be controverted, the magistrate shall take testimony in relation thereto. The evidence must be reduced to writing, and subscribed by the witnesses.

ART. 1394, Sec. 24. If it appear that there is no just reason to fear the commission of the offense alleged to have been threatened, the person complained of shall be discharged.

ART. 1395, Sec. 25. If, however, there be just reason to fear the commission of the offense, the person complained of may be required to enter into a bond, in such sum, not exceeding five thousand dollars, as the magistrate may direct, with one or more sufficient sureties, to keep the peace towards the people of this state, and particularly towards the complainant. The bond shall be valid and binding for six months, and may, upon the renewal of the complaint, be extended for å longer period, or a new bond may be required.

ART. 1396, Sec. 26. If the bond required by the last section be given, the party complained of shall be discharged. If he do not give it, the magistrate shall commit him to prison, specifying in the warrant the requirement to give security, the amount thereof, and the omission to give the same.

Sec. 27. If the person complained of be committed for not giving the bond required, he may be discharged by any magistrate, upon giving the same.

Sec. 28. A bond given, as provided in section twenty-five, must be filed by the magistrate in the office of the clerk of the county.

ART. 1397, Sec. 29. Any person who, in the presence of a court or magistrate, shall assault or threaten to assault another, or to commit any offense against his person or property, or who shall contend with another with angry words, may be ordered by the court or magistrate to give security, as is provided in section twenty-five, or if he refuse to do so, may be committed, as provided in section twenty-six.

ART. 1398, Sec. 30. A bond to keep the peace shall be deemed broken on a conviction of the person complained against of a breach of the peace.

ART. 1399, Sec. 31. Upon the district attorney's producing evidence of such conviction to the court of sessions of the county, the court shall order the bond to be prosecuted, and the district attorney shall thereupon commence an action on the same, in the name of the people of this state.

ART. 1400, Sec. 32. In the action the offense stated in the record of conviction shall be alleged as the breach of the bond, and shall be conclusive evidence thereof.

ART. 1401, Sec. 33. No security to keep the peace or be of good behavior shall be required except as herein prescribed.

ART. 1402, Sec. 34. The organization and regulation of the police force in the cities and towns of this state are governed by special laws.

ART. 1403, Sec. 35. The mayor or other officer having the direction of the police in a city, town or village, shall order a force sufficient to keep the peace to attend any public meeting, when he is satisfied that a breach of the peace is to be apprehended.

ART. 1404, Sec. 36. When a sheriff or other public officer, authorized to execute process, shall find or have reason to apprehend that resistance will be made to the execution of his process, he may command as many male inhabitants of his county as he may think proper, and any military company or companies in the county, armed and equipped, to assist him in overcoming the resistance, and, if necessary, in seizing, arresting and confining the resisters, and their aiders and abettors, to be punished according to law.

ART. 1405, Sec. 37. The officer shall certify to the court from which the process issued, the names of the resisters and their aiders and abettors, to the end that they may be proceeded against for their contempt of court.

ART. 1406, Sec. 38. Every person commanded by a public officer to assist him in the execution of process, as provided in section thirty-six, who shall, without lawful cause, refuse or neglect to obey the command, shall be deemed guilty of a


ART. 1407, Sec. 39. If it appear to the governor that the power of any county is not sufficient to enable the sheriff to execute process delivered to him, he shall, on the application of the sheriff, order such military force from any other county or counties as shall be necessary.

ART. 1408, Sec. 40. When six or more persons, whether armed or not, shall be unlawfully or riotously assembled in any city or town, the sheriff of the county and his deputies, the mayor and aldermen of the city, or the constable of the town and the justices of the peace, shall go among the persons so assembled, or as near to them as possible, and shall command them in the name of the people of the state immediately to disperse.

ART. 1409, Sec. 41. If the persons assembled do not immediately disperse, the magistrates and officers shall arrest them, that they may be punished according to law; and for that purpose may command the aid of all persons present or within the county.

ART. 1410, Sec. 42. If a person so commanded to aid the magistrates or officers, neglect or refuse to do so, he shall be deemed guilty of a misdemeanor, and shall be punished accordingly.

ART. 1411, Sec. 43. If a magistrate or officer, having notice of an unlawful or riotous assembly, as provided in section forty, neglect to proceed to the place of assembly, or as near thereto as he can with safety, and to exercise the authority with which he is invested for suppressing the same, and arresting the offenders, he shall be deemed guilty of a misdemeanor.

ART. 1412, Sec. 44. If the persons so assembled and commanded to disperse, do not immediately disperse, any two of the magistrates or officers before mentioned may command the aid of a sufficient number of persons, and may proceed in such manner as in their judgment is necessary to disperse the assembly and arrest the offenders.

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ART. 1413, Sec. 45. When an armed force is called out for the purpose pressing an unlawful or riotous assembly, or arresting the offenders, it shall obey such orders in relation thereto as may have been made by the governor, or by a judge of a court of record, or the sheriff of the county, or by any two of the magistrates or officers mentioned in section forty.

ART. 1414, Sec. 46. When there is an unlawful or riotous assembly, with the intent to commit a felony, or to offer violence to person or property, or to resist by force the laws of the state, and the fact is made to appear to the governor, or to a judge of the supreme or district court, or county court, or to the sheriff of the county, either of those officers may issue an order, directed to the commanding officer of a division, brigade, regiment, battalion or company, to order his command, or any part thereof, (describing the kind and number of troops) to appear at a time and place therein specified, to aid the civil authorities in suppressing violence and enforcing the laws.

ART. 1415, Sec. 47. The commanding officer to whom the order is given shall forthwith obey the same, and the troops so required shall appear at the time and place appointed, armed and equipped, with ammunition as per inspection, and shall execute any order that they shall then and there receive, according to law. ART. 1416, Sec. 48. When the governor shall be satisfied that the execution of civil or criminal process has been forcibly resisted in any county by bodies of men, or that combinations to resist the execution of process by force exist in any

county, and that the power of the county has been exerted, and has not been sufficient to enable the officer having the process to execute it, he may, on the application of the officer, or of the district attorney, or county judge of the county, by proclamation, to be published in such papers as he shall direct, declare the county to be in a state of insurrection, and may order into the service of the state such number and description of volunteer or uniform companies, or other militia of the state, as he shall deem necessary, to serve for such term and under the command of such officer or officers as he shall direct.

Sec. 49. The governor may, when he shall think proper, revoke the proclamation authorized by the last section, or declare that it shall cease at such time and in such manner as he shall direct.

ART. 1417, Sec. 50. Any person who shall, after the publication of the proclamation authorized by section forty-eight, resist or aid in resisting the execution of process, in any county so declared to be in a state of insurrection, or who shall aid or attempt the rescue or escape of any person from lawful custody or confinement, or who shall resist or aid in resisting any force ordered out by the governor to quell or suppress an insurrection, shall be punished by imprisonment, in a state prison, for a term not less than two years.


ART. 1418, Sec. 51. The governor, lieutenant-governor, secretary of state, controller, treasurer, attorney-general, surveyor-general, justices of the supreme court, and judges of the district courts, shall be liable for impeachment for any misdemeanor in office.

Sec. 52. All impeachments shall be tried by the senate; when sitting for that purpose the senators shall be upon oath or affirmation.

ART. 1419, Sec. 53. When a civil officer of the state is impeached by the assembly for a misdemeanor in office, the articles of impeachment shall be delivered to the president of the senate.

Sec. 54. The senate shall assign a day for hearing the impeachment, and shall inform the assembly thereof. The president of the senate shall cause a copy of the articles of impeachment, with a notice to appear and answer the same at the time and place appointed, to be served on the defendant, not less than ten days before the day fixed for the hearing.

Sec. 55. The service must be upon the defendant personally, or if he cannot upon diligent inquiry be found within the state, the senate upon due proof of that fact may order that publication be made in such manner as they deem proper, of a notice, requiring him to appear at a specified time and place and answer the articles of impeachment.

Sec. 56. If the defendant do not appear, the senate, upon proof of service or publication, as provided in the last two sections, may of their own motion, or for cause shown, assign another day for hearing the impeachment; or may then, or at any other time which they may appoint, proceed in the absence of the defendant to trial and judgment.

Sec. 57. When the defendant appears he must answer the articles of impeachment, which he may do, either by objecting to the sufficiency of the same or of any article therein, or by denying the truth of the same.

Sec. 58. If the defendant object to the sufficiency of the impeachment, the objection must be in writing, but need not be in any specific form, it being sufficient if it present intelligibly the grounds of the objection. If he deny the truth of the impeachment the denial may be oral and without oath, and shall be entered upon the journal.

Sec. 59. If an objection to the insufficiency of the impeachment be not sustained by a majority of the members of the senate who heard the argument, the defendant shall be ordered forthwith to answer the articles of impeachment. If

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