Title I. II. PART II. OF CRIMINAL PROCEDURE. PRELIMINARY PROVISIONS, §§681-689. OF THE PREVENTION OF PUBLIC OFFENSES, §§ 692-734. OF JUDICIAL PROCEEDINGS FOR THE REMOVAL OF PUBLIC OFFICERS BY III. OF THE PROCEEDINGS IN CRIMINAL ACTIONS PROSECUTED BY INDICT- IV. OF PROCEEDINGS AFTER COMMITMENT AND BEFORE INDICTMENT, $$ 888-937. V. OF THE INDICTMENT, §§ 940-972. VI. OF PLEADINGS AND PROCEEDINGS AFTER INDICTMENT AND BEFORE THE COMMENCEMENT OF THE TRIAL, §§ 976-1053. VII. OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT, §§ 1055-1188. VIII. OF JUDGMENT AND EXECUTION, §§ 1191-1230. IX. OF APPEALS TO THE SUPREME COURT, §§ 1235-1265. X. MISCELLANEOUS PROCEEDINGS, §§ 1268-1423. XI. OF PROCEEDINGS IN JUSTICES' AND POLICE COURTS AND APPEALS TO THE XII. OF SPECIAL PROCEEDINGS OF A CRIMINAL NATURE, §§ 1473-1564. § 681. NO PERSON PUNISHABLE BUT ON LEGAL CONVICTION. No person can be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof. History: Enacted February 14, 1872, re-enactment of § 6 Criminal open court, or plea of guilty prior to delivery of judgment. The word is used with like meaning in many sections of Penal Code, and this is true construction of word in this section.-Ex parte Brown, 68 Cal. 176, 181, 6 Am. Cr. Rep. 55, 8' Pac. 829. 3. "Conviction"-Means what.-Ordinary meaning of word "conviction" is finding by jury of verdict that accused is guilty. In legal parlance it often signifies final judgment of court, but, while word may be used as signifying sentence pronounced on verdict on record of conviction, including inter alia verdict and sentence, such meaning ought not to be attributed to it, unless there is something in context to indicate that it was used in such sense. There can be conviction, however, in other modes than by verdict of jury. Conviction can be by plea of guilty, and in other modes mentioned in section 689. But in all these modes conviction takes place before judgment, except in last mode mentioned in section 689, and in that it will be observed that jury is waived and trial is by court in case which does not amount to felony. Words "conviction" and "convicted" may signify either of these modes.-Ex parte Brown, 68 Cal. 176, 178, 180, 183, 6 Am. Cr. Rep. 55, 8 4. Same-Terms distinguished.—Ordinary legal meaning of "conviction," when used to designate particular stage of criminal prosecution triable by jury, is confession of accused in open court, or verdict returned against him by jury, which ascertains and publishes the fact of his guilt; while "judgment" or "sentence" is appropriate word to denote action of court before which trial was had, declaring consequence to convict of fact thus ascertained.-Commonwealth v. Lockwood, 109 Mass. 223, 12 Am. Rep. 699, 700. 5. Vacancy in office to be created by conviction of felony under section 996, Political Code, contemplates plea or verdict of guilty, and the perfection of an appeal from judgment of conviction and granting of writ of probable cause merely stays execution of judgment. Public officer convicted of felony is placed, by verdict of guilty, in such position and under such physical restraint as prevents him from further performing duties of office.-McKannay v. Horton, 151 Cal. 711, 121 Am. St. Rep. 146, 13 L. R. A. (N. S.) 661, 91 Pac. 598. § 682. PUBLIC OFFENSES, HOW PROSECUTED. Every public offense must be prosecuted by indictment or information, 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 the time of war, or which the state may keep, with the consent of Congress, in time of peace; 3. Offenses tried in justices' and police courts; 4. All misdemeanors of which jurisdiction has been conferred upon superior courts sitting as juvenile courts. History: Enacted February 14, 1872; amended April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 10; February 21, 1911, Stats. and Amdts. 1911, p. 68. 10. Same-Nature of presentment-Disuse. 11. Same-No function for, under present system. 12. Prosecution by information-Nature of. 13. Provisions of federal constitution do not apply to what. 14. What offenses may be prosecuted by indictment. 1. Construction of section — Intention of legislature.—It was intention of legislature to make provisions of Penal Code equally applicable by information and indictment. After examination contemplated by section 809, post, has been had, it is left to discretion of district attorney to prosecute either by indictment or information; and whether one form or other is pursued, fact of previous conviction may be set forth. If defendant pleads not guilty to such charge, issue must be tried by jury; but if he pleads guilty thereto, no such trial is required.People v. Carlton, 57 Cal. 559, 561. 2. Same "Information" authorized by this section is that named in article I, section 8 of constitution, as equivalent of an indictment, and which is to be prepared by district attorney under provisions of section 809, post. In re Curtis, 108 Cal. 661, 663, 41 Pac. 793. 3. Same Same Amendment of 1911(Stats. 1911, p. 68).-The word "information" in this amendment is obviously used in a technical sense and refers to the accusation filed after a preliminary examination.-Edington v. Superior Court, 18 Cal. App. 739, 742, 124 Pac. 450. 4. Same Provisions are equivalent to what.-Provisions of this section are equivalent to declaration that an offense tried in justice's or police court is not to be prosecuted by indictment or information.-In re Grosbois, 109 Cal. 445, 450, 42 Pac. 444. 5. Exception made in above section, to "all misdemeanors to which jurisdiction has been conferred upon superior courts sitting as juvenile courts," can not be construed as authorizing the production and trial thereon in a superior court upon the verified complaint filed in the superior court, as such interpretation would render it repugnant to subdivision 3 of section 29 of article IV of the constitution, prohibiting the legislature from passing special laws "regulating the practice in the courts of justice" or "where a general law can be made applicable," which applicability appears in the general provision of section 888 Penal Code, regulating the trials of all misdemeanors vested in the superior court.-Gardner v. Superior Court, 19 Cal. App. 548, 549, 550, 126 Pac. 501. 6. Misconduct in office- Accusation not indictment.-An accusation under section 758, post is not an indictment.-Matter of Burleigh, 145 Cal. 35, 36, 78 Pac. 242. See, also, §§ 758, 772, and note. 7. Same-Neglect of official duties, how to be prosecuted.-Wilful neglect of their duties by state bank commissioners, if crime, must be prosecuted by information or indictment.-Kilburn v. Law, 111 Cal. 237, 240, 43 Pac. 615. 8. Same-Procedure by accusation distinguished. Provisions of Penal Code clearly make distinction between an indictment or information and procedure by accusation charging one with misconduct in his office. -Matter of Burleigh, 145 Cal. 35, 37, 78 Pac. 242. 9. Presentment by grand jury -Indictment-Chief distinction between indictment and presentment at common law was that former was made at suggestion of crown, while latter was made upon knowledge of one or more of jurors, and instead of being indorsed "a true bill" by foreman alone, was signed by all of jurors.-In re Grosbois, 109 Cal. 445, 448, 42 Pac. 444. 10. Same Nature of presentment -Disuse.-A presentment is informal accusation which is generally regarded in light of instruction upon which indictment can be framed. This form of accusation, however, has fallen into disuse. In re Grosbois, 109 Cal. 445, 448, 42 Pac. 444. 11. Same-No function for, under present system. As superior court has no jurisdiction to try misdemeanor, and as there is no provision for justice's or police court to try any offense prosecuted by indictment or information, it is clear that, under present system, there is no function for presentment by grand jury, and no authority for arrest of person charged in that form with commission of public offense.In re Grosbois, 109 Cal. 445, 450, 42 Pac. 444. See Ex parte McCarthy, 53 Cal. 412, 414. 12. Prosecution by information — Nature of. Proceeding by information as substitute for ordinary indictment was creature of new constitution of 1879 article 1 section 8 (1 Henning's General Laws, 3d ed., p. xxxii), and is designed to serve purpose and to take place of an indictment; and pendency of one indictment is no ground for plea in abatement to an information in same court for same cause.-Kalloch v. Superior Court, 56 Cal. 229, 233, 236. 13. Provisions of federal constitution do not apply to criminal prosecution under state laws, except when the states are named.-State v. Boswell, 104 Ind. 541, 5 Am. Cr. Rep. 166, 4 N. E. 675; Shular v. State, 105 Ind. 289, 55 Am. Rep. 211, 7 Am. Cr. Rep. 509, 4 N. E. 870. § 683. CRIMINAL ACTION DEFINED. The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action. History: Enacted February 14, 1872, re-enactment of § 8 Criminal § 684. PARTIES TO A CRIMINAL ACTION. A criminal action is prosecuted in the name of the people of the state of California, as a party, against the person charged with the offense. History: Enacted February 14, 1872, re-enactment of § 9 Criminal PARTIES TO CRIMINAL ACTION. 1. Criminal action-How prosecuted. 1. Criminal action-How prosecuted.—A criminal action ought to be prosecuted in name of people.-City of Santa Barbara v. Sherman, 61 Cal. 57, 58. 2. Same Proceedings to remove from office.-Action to remove from office for misdemeanor, is same.-Kilburn v. Law, 111 Cal. 237, 241, 43 Pac. 615. 3. Prosecution to be in name of people. -The requirement of the constitution that prosecutions shall be in the name of and by the authority of the people is one which goes to the very substance and not mere shadow of those essential rights to which the individual is entitled when proceeded against for an alleged infraction of a law having for its penalty the deprivation of personal liberty.-Ex parte Clark, 24 Cal. App. 389, 141 Pac. 831. The § 685. THE PARTY PROSECUTED KNOWN AS DEFENDANT. party prosecuted in a criminal action is designated in this code as the defendant. History: Enacted February 14, 1872, re-enactment of § 10 Criminal Practice Act 1851, Stats. 1851, p. 213. § 686. RIGHTS OF DEFENDANT IN A CRIMINAL ACTION. 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 to appear and defend in person and with counsel. 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, cross-examined 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 crossexamine 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 can not with due diligence be found within the state; and except also that in the case of offenses hereafter committed the testimony on behalf of the people or the defendant of a witness deceased, insane, out of jurisdiction, or who can not, with due diligence, be found within the state, given on a former trial of the action 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, may be admitted. History: Enacted February 14, 1872; amended March 14, 1911, Stats. and Amdts. 1911, p. 364. |