of appeal to supreme court, nor charges given to jury on former trial by judge of court then trying cause. Such papers are not essential to give jurisdiction to court to which change was made.-People v. Bush, 71 Cal. 602, 605, 12 Pac. 781. § 1037. PROCEEDINGS ON REMOVAL, IF DEFENDANT IS IN CUSTODY. If the defendant is in custody, the order must direct his removal, and he must be forthwith removed by the sheriff of the county where he is imprisoned, to the custody of the sheriff of the county to which the action is removed. History: Enacted February 14, 1872, re-enactment of § 316 Criminal § 1038. AUTHORITY OF COURT TO WHICH ACTION IS REMOVED. WHEN ORIGINAL PAPERS MUST BE TRANSMITTED. The court to which the action is removed must proceed to trial and judgment therein as if the action had been commenced in such court. If it is necessary to have any of the original pleadings or other papers before such court, the court from which the action is removed must at any time, upon application of the district attorney or the defendant, order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being retained. History: Enacted February 14, 1872, re-enactment of § 317 Criminal quires jurisdiction by entry of order of removal, and court making order has no jurisdiction to proceed further in case after such order is legally made. Copies of papers to be forwarded to court to which action has been transferred are but evidence of order of transfer and of proceedings in court from which transfer has been made. Furnishing of such evidence is not essential to jurisdiction of court.-People v. Suesser, 142 Cal. 354, 358, 75 Pac. 1093. 3. Second arraignment when venue is changed is unnecessary, if arraignment was had in original county before removal.Davis v. State, 39 Md. 384. § 1041. Issue of fact defined. § 1042. Issue of fact, how tried. CHAPTER VII. THE MODE OF TRIAL. § 1043. When presence of defendant is necessary on the trial. § 1041. ISSUE OF FACT DEFINED. An issue of fact arises: 1. Upon a plea of not guilty. 2. Upon a plea of a former conviction or acquittal of the same offense. 3. Upon a plea of once in jeopardy. History: Enacted February 14, 1872, re-enactment of § 318 Criminal As to different kinds of pleas, see, ante, § 1016 and note. As to issue defined, and different kinds, see Kerr's Cyc. Code Civ. Proc. (2d ed.), § 588 and note. As to issue of fact, how raised in civil case, see Kerr's Cyc. Code Civ. Proc. (2d ed), § 590 and note. As to issue of law, how tried, see Kerr's Cyc. Code Civ. Proc. (2d ed.), § 591 and note. As to plea of former conviction or acquittal, how put in, and its form, see, ante, § 1017 and note. As to plea of not guilty, how put in, and its form, see, ante, § 1017 and note. As to plea of not guilty, what is put in issue, see, ante, § 1019 and note. As to plea of not guilty, what may be given in evidence, see, ante, § 1020 and note. As to plea of once in jeopardy, how put in, and its form, see, ante, § 1017 and note. § 1042. ISSUE OF FACT, HOW TRIED. Issues of fact must be tried by jury, unless a trial by jury be waived in criminal cases not amounting to felony, by the consent of both parties expressed in open court and entered in its minutes. In cases of misdemeanor the jury may consist of twelve, or any number less than twelve upon which the parties may agree in open court. History: Enacted February 14, 1872, founded on § 319 Criminal Practice Act 1851, Stats. 1851, p. 246; amended February 25, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 5. 15. Consent to lesser number prohibited in felonies. 16. Intoxication of juror. I. RIGHT TO TRIAL BY JURY. 1. Abridgement of right by legislature.Legislature has no power to take away constitutional right to jury trial of offense against public at large which is embraced in Penal Code of this state. And constitutional guaranty of right to trial by jury of such offense can not be evaded by nature of powers vested in municipal corporation or by nature of jurisdiction conferred upon municipal courts. Ex parte Wong You Ting, 106 Cal. 296, 298, 39 Pac. 627. 2. Commitment of minor to reform school.-Action of police magistrate in committing minor child to industrial school for reformation his training and does not amount to prosecution, or proceedings according to course of common law, and he is not entitled to trial by jury.-Ex parte Ah Peen, 51 Cal. 280, 281. 3. Same Accusation by grand jury.— Minor accused of crime by grand jury can not be committed as criminal to reform school without trial by jury.-Ex parte Becknell, 119 Cal. 496, 497, 51 Pac. 692. Ah Peen case is not cited in Becknell case. Whether there is distinction between accusation by grand jury and action of police magistrate is not determined, but there appears to be no logical reason why trial by jury can not be demanded in one case as well as in other. 5. Denial of right- Not reviewable on habeas corpus.-There is no valid statutory provision for trial of case of vagrancy without jury; but denial of trial by jury in such case in police court is merely error to be corrected on appeal, and does not go to the jurisdiction of court, and can not be inquired into on habeas corpus.-In re Fife, 110 Cal. 8, 10, 42 Pac. 299. 6. Where defendant charged with misdemeanor has been denied jury trial, error can not be reached by habeas corpus.-Ex parte Miller, 82 Cal. 454, 455, 22 Pac. 1113. 7. Same Writ of prohibition.-Where defendant is charged with misdemeanor, and has been denied the right of trial by jury, writ of prohibition is not allowable to prevent justice's court from trying charge. The defendant has a plain, speedy and adequate remedy by appeal.-Powelson v. Lockwood, 82 Cal. 613, 615, 23 Pac. 143. 8. Felonies and misdemeanors.-By above section it is clearly provided that all offenses amounting to felony must be tried by jury, and all amounting to misdemeanor must be so tried, unless jury is waived.Taylor v. Reynolds, 92 Cal. 573, 575, 28 Pac. 688. 9. Municipal police regulations.-Although legislature may authorize summary trial violations without jury of of municipal police regulations not embraced in general criminal legislation of state, yet where offense falls within legal or common-law definition of crime or misdemeanor, and is defined in Penal Code, constitutional right of trial by jury can not be evaded.-Taylor v. Reynolds, 92 Cal. 573, 575, 28 Pac. 688. 10. Plea of guilty.-Defendant is not entitled to trial by jury where he has pleaded guilty to offense divided into degrees and court proceeds to take evidence to fix degree of offense.-People v. Noll, 20 Cal. 164, 166; People v. Lennox, 67 Cal. 113, 114, 6 Am. Cr. Rep. 542, 7 Pac. 260; People v. Chew Lan Ong, 141 Cal. 550, 552, 99 Am. St. Rep. 88, 75 Pac. 186; Hallinger v. Davis, 146 U. S. 314, 318, 36 L. ed. 986, 13 Sup. Ct. Rep. 105; Ex parte Belt, 159 U. S. 95, 99, 40 L. ed. 89, 15 Sup.. Ct. Rep. 987. As to plea of guilty, see, ante, §§ 1016, 1017 and notes. 11. Public nuisance. Obstruction of street or sidewalk in city is public nuisance, and person who maintains such is guilty of misdemeanor, which must be tried by jury, unless it is waived.-Taylor v. Reynolds, 92 Cal. 573, 575, 28 Pac. 688. 12. Vagrancy.-Legislature may provide for summary proceedings in police court without jury in cases of petty offenses, such as those provided for in certain of the early English statutes, and in cases which are intrinsically of similar nature and degree, and vagrancy is one of such offenses, for summary trial of which without jury legislature might provide by general law.-In re Fife, 110 Cal. 8, 10, 42 Pac. 299. 13. Waiver of jury trial, when.-Jury trial may be waived in any civil case, and in all criminal cases not amounting to felony, and in any case in which jury trial may be waived, and in which jury trial is not necessary constituent part of the court. Refusal of court to allow jury is mere error, and can not be reviewed upon habeas corpus. In re Fife, 110 Cal. 8, 9, 42 Pac. 299. II. NUMBER OF JURORS. 14. Alternate jurors.-One or two additional jurors may be called, in discretion of court, in trial of felony which promises to be protracted. Such jurors are called and sworn after the jury proper is completed and sworn.-See, post, § 1089. 15. Consent to have lesser number prohibited in felonies.—Jury trying charge of felony must, within meaning of constitution, consist of twelve men. Defendant can not consent to be tried by jury composed of fewer number.-People v. O'Neil, 48 Cal. 257, 258. See People v. Scoggins, 37 Cal. 676, 678; People v. Russell, 46 Cal. 121, 123. See, also, Const. 1879, art. I, § 7; Henning's General Laws (3d ed.), p. xxxii. 16. Intoxication of juror. Constitution guarantees to defendant right to trial by twelve competent jurors, and there must be this number of competent jurors throughout trial. Where one juror appears in state of intoxication, this would present case affecting defendant's right to be tried by twelve jurors.-People v. Deegan, 88 Cal. 602, 608, 26 Pac. 500 (De Haven, J., concurring). As to alternate trial jurors, see, post, § 1089. § 1043. WHEN PRESENCE OF DEFENDANT IS NECESSARY ON THE TRIAL. If the prosecution be for a felony, the defendant must be personally present at the trial; but if for misdemeanor, the trial may be had in the absence of the defndant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the district attorney, by an order or warrant, require the personal attendance of the defendant at the trial. History: Enacted February 14, 1872, re-enactment of § 320 Criminal Practice Act 1851, Stats. 1851, p. 246, as amended April 3, 1863, Stats. 1863, p. 160; April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 19. PRESENCE OF DEFENDANT-AS TO NECESSITY OF. 1. Absence from trial of co-defendant. 2. Depositions-Reading of. 3. Error from absence-When cured. 4. Same-Flight of defendant. 5, 6. Misdemeanor-Forfeiture of bail. 7. Presence of defendant in chains. 8. Presumption of presence. 9, 10. Same-Defendant must prove ab sence. 11, 12. Same-Sufficiency of record to show 13. Same-What record should show. 16, 17. View of premises-Presence at. As to presence of defendant at arraignment, see, ante, § 977 and note. As to presence of defendant at judgment, see, post, § 1193 and note. As to presence of defendant at rendering of verdict, see, post, § 1148 and note. As to presence of defendant in justices' and police courts, see, post, § 1435 and note. As to presence of defendant at hearing on appeal, see, post, § 1255. 1. Absence from trial of co-defendant.— Where defendant was absent from trial of co-defendant, it is no ground for new trial, unless it be shown that he was absent from his own trial.-People v. O'Brien, 88 Cal. 483, 490, 26 Pac. 362. 2. Depositions-Reading of.-Reading of deposition is part of trial, and if depositions were read in absence of defendant, new trial will be ordered.-People v. Kohler, 5 Cal. 72. 3. Error from absence-When cured.— Where jury, after retiring, returned into court for further instructions, and court, in absence of defendant, reread to jury portion of original instructions, and after jury had again retired they were brought into court by order of judge, who directed them, in presence of defendant, to disregard what he had read to them while defendant was absent, and proceeded to read again what he had read when they came in first time, defendant was not prejudiced by what occurred while he was absent.-People v. Soto, 65 Cal. 621, 622, 4 Pac. 664. 5. Misdemeanor -Forfeiture of bail.Offense of false imprisonment is misdemeanor, and where defendant's attorney appeared and offered to plead and go to trial, court had no right to forfeit defendant's bail. People v. Ebner, 23 Cal. 158, 159, 160. 6. Defendant is not required to be personally present at his trial upon charge of misdemeanor, and failure to be personally present when his case is called does not justify forfeiture of his bail.-People v. Budd, 57 Cal. 349, 352. 7. Presence of defendant in chains.—It is violation of rights of defendant to compel him to appear during progress of his trial with chains and shackles upon his limbs, without evident necessity, as means of securing his presence for judgment, and to require him to remain So chained and shackled.-People v. Harrington, 42 Cal. 165, 168, 10 Am. Rep. 296. 8. Presumption of presence.-Where bill of exceptions does not show that defendant was not present, it must be presumed he was present.-People v. Collins, 105 Cal. 504, 513, 39 Pac. 16. 9. Same-Defendant must prove absence. -If defendant objects upon appeal that he was not present at time of trial upon charge of felony, he must prove his absence.-People v. Stuart, 4 Cal. 218, 226. 10. All intendments upon appeal being in favor of regularity of judgment, error not being presumed, silence of record, in failing to show that defendants were present during every stage of trial, is not ground for reversal, unless defendants affirmatively show that they were not all present.-People v. Holmes, 118 Cal. 444, 448, 50 Pac. 675. 11. Same-Sufficiency of record to show presence.-Record in prosecution for felony sufficiently shows that defendant was present in court at particular time if it recites that parties and their attorneys were present at every stage of proceedings.-People v. Jung Qung Sing, 70 Cal. 469, 472, 11 Pac. 755. 12. Where several defendants are jointly charged, and record shows that at certain time during trial "the jury, defendant, and all counsel" were present, error will not be presumed, but absence of defendants, or any one of them, must be made to appear affirmatively.-People v. Holmes, 118 Cal. 444, 449, 50 Pac. 675. 13. Same-What record should show.— Where record contains bare statement that defendant was absent during portion of trial, that fact alone is insufficient to reverse judgment. Record should show when, or for what time, or at what part of proceedings, prisoner was absent, so that appellate court can judge effect to be given to such absence.-People v. Bealoba, 17 Cal. 389, 399. 14. Securing presence of defendant.-In case of felony, prisoner must be personally present in court at all times. In order to secure his presence, court should, at commencement of trial, order him into actual custody.-People v. Beauchamp, 49 Cal. 41. 42. 15. Setting case for trial, in absence of defendant, where his counsel was present. is not error, where ample time for preparation was given, and no objection was made thereto at time of trial.-People v. Erwin, 4 Cal. App. 394, 88 Pac. 371, 372. at. 16. View of premises -Presence Where jury was permitted to view scene of alleged crime without presence of prisoner, there is no error. This "view" is not any part of trial, within meaning of statute requiring presence of prisoner "at the trial." -People v. Bonney, 19 Cal. 426, 445. 17. It is reversible error to authorize jury to be taken from court-room during trial to view place or places elsewhere, under provisions of section 1119, post, unless defendant be present during wholetime of view.-People v. Bush, 68 Cal. 623, 634, 10 Pac. 169. 18. Same-Same-Defendant is deprived of his constitutional right of appearing and defending in person, and of being confronted with witnesses against him, if jury, under direction of court, view premises where crime is alleged to have been committed, in absence of defendant.-People v. Lowrey, 70 Cal. 193, 194, 11 Pac. 605. CHAPTER VIII. FORMATION OF THE TRIAL JURY AND THE CALENDAR OF ISSUES FOR TRIAL. $1046. Formation of trial jury. § 1049. Defendant entitled to two days to prepare for trial. § 1046. FORMATION OF TRIAL JURY. Trial juries for criminal actions. are formed in the same manner as trial juries in civil actions. History: Enacted February 14, 1872, re-enactment of § 321 Criminal FORMATION OF TRIAL JURY-ELISOR. 1. Object of above provision. 2. Qualifications of summoning officers. 1. Object of above provision is to adopt same general plans in criminal actions as in civil actions, subject to such modifications as may be made by other sections of this code. People v. Scoggins, 37 Cal. 676, 679. 2. Qualifications of summoning officers. -Above section refers to the manner in which juries in criminal cases are formed, and not to qualifications of officers serving venire.-People v. Slater, 119 Cal. 620, 622, 51 Pac. 957. 3. Same-Appointment of elisor, under section 4192, Political Code, on affidavits disqualifying sheriff and coroner, the defendant is entitled to file counter-affidavits as to the fact of such disqualification, and also entitled to be heard upon the qualifications of the person selected as elisor. -People v. Schmitz, 7 Cal. App. 330, 15 L. R. A. (N. S.) 717, 94 Pac. 407. 4. Same-Editorial note.-Attention has already been called to the fact that the decision in the Schmitz case, both in the district court of appeal and in the supreme court, is not to be regarded as sound law and can not safely be relied upon as a precedent. 5. Same-Authority doubtful.-The authority of this case is very questionable. -See § 519 and note, § 1237 and note. § 1047. CLERK TO PREPARE A CALENDAR. The clerk must keep a calendar of all criminal actions pending in the court, enumerating them according to the date of the filing of the indictment or information, specifying opposite the title of each action whether it is for a felony or a misdemeanor, and whether the defendant is in custody or on bail History: Enacted February 14, 1872, re-enactment of § 322 Criminal § 1048. ORDER OF DISPOSING OF ISSUES ON THE CALENDAR. The 2. Prosecutions for misdemeanor, when the defendant is in custody. 3. Prosecutions for felony, when the defendant is on bail. 4. Prosecutions for misdemeanor, when the defendant is on bail. History: Enacted February 14, 1872, re-enactment of § 323 Criminal 1. Separate trials of co-defendants.Where several defendants are jointly charged, the court has power to direct sep arate trials, and to direct which shall be § 1049. DEFENDANT ENTITLED TO TWO DAYS TO PREPARE FOR TRIAL. After his plea, the defendant is entitled to at least two days to prepare for trial. History: Enacted February 14, 1872, re-enactment of § 324 Criminal 1. Justice not to be defeated. 2. Newly appointed counsel. 3. Preparing order of defense. 4. Reasonable time should be allowed. 5. Waiver of objection. 1. Justice not to be defeated. While great liberality should be extended toward persons charged with crime in preparing their defense, the rule must not be So relaxed as to defeat ends of justice.-People v. Francis, 38 Cal. 183, 188. 2. Newly appointed counsel.-Within discretion of court to allow counsel appointed in place of other counsel reasonable time for preparation for trial.-People v. Warren, 130 Cal. 678, 680, 63 Pac. 87. 3. Preparing order of defense.-Allowance of time to defendant.-After prosecution has rested its case, allowance of any time in which to prepare order of defense is discretionary with court; and no error is established by mere fact that defendant was allowed only thirteen minutes, in absence of any showing of abuse of dis 1 |