without verdict entered upon minutes of court, he is entitled, upon second trial, to an acquittal upon his plea of "once in jeopardy" and former acquittal.-People v. Arnett, 129 Cal. 306, 307, 308, 61 Pac. 930. 108. What is not acquittal-An arrest of judgment operates as acquittal only when no evidence has been shown sufficient to charge defendant with any offense. It is not necessary that evidence should be sufficient to convict. If there is any evidence tending to establish to certainty that defendant has committed particular crime charged, mistrial does not operate as an acquittal or as bar to further proceedings. -People v. Eppinger, 109 Cal. 294, 296, 41 Pac. 1037. See, also, par. 109, this note. 109. Same-Mistrial of defendant under defective information does not operate as an acquittal, or as bar to further proceedings under subsequent indictment for same offense. People v. Eppinger, 109 Cal. 294, 297, 41 Pac. 1037. See, also, par. 108, this note. 110. Same-of offense of which defendant is found guilty. Where defendant charged with crime of murder was found guilty of manslaughter and was granted new trial, he still stood charged with murder, and could avail himself of former acquittal of crime only by plea, and proof supporting it, that he had been convicted of offense of manslaughter, by virtue of which law acquitted him of higher offense, but this by no means acquitted him of offense of which he had been found guilty. A prosecution, however, with view to conviction for murder, under such circumstances, would be in direct violation of this section. People v. McFarlane, 138 Cal. 481, 484, 485, 61 L. R. A. 245, 71 Pac. 568, 72 Id. 48. 111. Same- Reversal of judgment and no finding on plea.-If judgment of conviction is reversed upon defendant's appeal because there was no finding on plea of "once in jeopardy," these facts do not constitute jeopardy or an acquittal of defendant, and judge, on second trial, is authorized so to inform jury.-People v. Tucker, 117 Cal. 229, 231, 49 Pac. 134. § 688. NO PERSON TO BE A WITNESS AGAINST HIMSELF IN A CRIMINAL ACTION, OR TO BE UNNECESSARILY RESTRAINED. No person can be compelled, in a criminal action, to be a witness against himself; nor can 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. History: Enacted February 14, 1872, substantial re-enactment of § 13 Criminal Practice Act 1851, Stats. 1851, p. 213. Compelling accused to perform acts and subject his person to examination and inspection, see note, 94 Am. St. Rep. 336-347. Defendant as witness for himself, crossexamination, see, post, § 1323 and note. Defendant may be admitted to bail when, see, post, §§ 1268-1297 and notes. Right of prisoner to appear unmanacled, see note, 39 L. R. A. 821-825. 1. No one obliged to be witness against himself. Under both federal and state constitutions no person is compelled in any criminal case to be witness against himself.-U. S. Const. amdt. V (11 Fed. Stats. Ann., 2d ed., p. 363); Cal. Const. 1879, art. I, § 13, 1 Henning's General Laws, 3d ed., p. xxxiii. See, also, post, § 1323 and note. 2. Same-Not required to criminate himself. No person accused of public offense can be required, by an unauthorized question asked him at his arraignment, to criminate himself.-People v. King, 64 Cal. 338, 340, 30 Pac. 1028. 3. No trial or conviction under repealed law. No person accused of public offense can be, under this section, tried or convicted under provisions of law which has been repealed.-People v. King, 64 Cal. 338, 340, 30 Pac. 1028. 4. Same-Violation of common law and constitution.-To require prisoner, during course of his trial before court and jury, to appear and remain with chains and shackles upon his limbs, without evident necessity for such restraint, for purpose of securing his presence for judgment, is direct violation of the common-law rule and of this section.-People v. Harrington, 42 Cal. 165, 168, 10 Am. Rep. 296. 5. Prisoner to be free of chains and shackles.-It has ever been rule at common law that prisoner brought into presence of court for trial, upon his plea of not guilty to an indictment for any offense, is entitled to appear free of all manner of shackles or bonds, unless there is evident danger of his escape. People v. Harrington, 42 Cal. 165, 167, 10 Am. Rep. 296. §689. NO PERSON TO BE CONVICTED BUT UPON VERDICT OR JUDGMENT. 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 in the case mentioned in section one thousand and eleven, or upon a judgment of a court, a jury having been waived [,] in a criminal case not amounting to felony. History: Enacted February 14, 1872, substantial re-enactment of § 14 Criminal Practice Act 1851, Stats. 1851, p. 213; amended February 25, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 4. CONVICTED, HOW. 1. Commissioners' note. 2. "Conviction''-Is used in its ordinary sense. As to personal rights, see Kerr's Cyc. Civ. Code (2d ed.), §§ 43-50 and notes. 1. Commissioners' note says: "If a defendant does not plead when he has an opportunity, judgment may be pronounced See People v. against him.-§ 1011, post. King, 28 Cal. 265; People v. Joselyn, 29 Cal. 562. Under this chapter of 'Preliminary Provisions,' it may be generally said that as a necessary concomitant to all statutes declaring acts or omissions to be criminal, a mode of procedure to inflict the Heretofore penalty provided must exist. if the statute did not provide a mode of procedure, the common law of England, as. it is familiarly known, but which, from the fact that it was the common law of our been so. frequently mother country, has adopted by statute, so universally recogcourts for nized and acted upon by our supplying omissions and defects in statutory law, that it is by them recognized as one of our own naturalized and well-established institutions, and may now be well called the common law of the United States, furnished a method of procedure which was Some of the usually pursued by them. more prominent features of this system are: of innocence, and 1. The presumption 2. Not right to reasonable doubt of guilt. to be held to answer, except by inquest of a grand jury. 3. Trial by jury of his peers. 4. The determination of guilt or innocence without reference to general character. an or 5. Not to require prisoner to criminate himself nor to exculpate himself by giving his testimony. 6. Must not be tried twice for the same offense. 7. Nor be punished for act done prior to the passage of the statute making it an offense, nor by severer punishment than that there provided. It may be correctly remarked that the custom of some Continental European systems of allowing general character, habits of life, previous history, and other surroundings to be subjects of inquiry by the court in determining the probabilities of the guilt or innocence of one accused of crime, whilst it our courts, has not received favor in at least has no status as furnishing evidence for the defense, yet the permission of several states statutes given by the and this code to the defendant to testify in his own defense, looks to the observant like a step in the direction of relaxing rules heretofore rigidly observed. The general principles of our system, here enumerated and contained in the preceding sections, are the subjects of constitutional guaranty and protection, and this code consequently rigidly adheres to them, except that a defendant, if he desires to do so. may testify in his own behalf."-See § 1323, post and note. 2. "Conviction."-Is used in its ordinary sense of the establishment of guilt by the verdict of a jury or a plea of guilty.In re Riccardi, 182 Cal. 675, 189 Pac. 694. TITLE I. OF THE PREVENTION OF PUBLIC OFFENSES. Chapter I. OF LAWFUL RESISTANCE, §§ 692-694. II. OF THE INTERVENTION OF THE OFFICERS OF JUSTICE, §§ 697, 698. III. SECURITY TO KEEP THE PEACE, §§ 701-714. IV. POLICE IN CITIES AND TOWNS, AND THEIR ATTENDANCE AT EXPOSED PLACES, §§ 719, 720. § 692. LAWFUL RESISTANCE, BY WHOM MADE. to the commission of a public offense may be made: 1. By the party about to be injured; 2. By other parties. Lawful resistance History: Enacted February 14, 1872, re-enactment of § 15 Criminal RESISTANCE TO COMMISSION OF 1. Construction of section. 2. Resisting search for liquors without war lawful means, person so aiding is guilty of assault.-People v. Craig, 152 Cal. 42, 91 Pac. 997. 2. Resisting search for liquor without warrant.—Where a city recorder made an attempt to enter the house of another to search the same for liquor, without a proper search warrant delivered to any officer, the owner of the house was entitled to employ sufficient resistance to prevent the commission of the offense, though not to the extent of committing a homicide.People v. Ross, 19 Cal. App. 469, 474, 126 Pac. 375. § 693. BY THE PARTY, IN WHAT CASES, AND TO WHAT EXTENT. 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. History: Enacted February 14, 1872, re-enactment of § 16 Criminal § 694. BY OTHER PARTIES, IN WHAT CASES. Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense. History: Enacted February 14, 1872, re-enactment of § 17 Criminal CHAPTER II. OF THE INTERVENTION OF THE OFFICERS OF JUSTICE. § 697. Intervention of officers, in what cases. § 698. Persons acting in their aid justified. § 697. INTERVENTION OF OFFICERS, IN WHAT CASES. offenses may be prevented by the intervention of officers of justice: 1. By requiring security to keep the peace; Public 2. By forming a police in cities and towns, and by requiring their attendance in exposed places. 3. By suppressing riots. History: Enacted February 14, 1872, re-enactment of § 18 Criminal § 698. PERSONS ACTING IN THEIR AID JUSTIFIED. When 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. History: Enacted February 14, 1872, re-enactment of § 19 Criminal Practice Act 1851, Stats. 1851, p. 214. § 701. INFORMATION OF THREATENED OFFENSE. An information may be laid before any of the magistrates mentioned in section eight hundred and eight, that a person has threatened to commit an offense against the person or property of another. History: Enacted February 14, 1872, substantial re-enactment of § 20 Criminal Practice Act 1851, Stats. 1851, p. 214. THREATENED OFFENSE SECURITY TO KEEP THE PEACE. 1. Commissioners' note. 2. Justices of peace have full and complete jurisdiction. 3. Same-Appeal from order-Not provided for. 4. Power of magistrate-Investment in Liberty bonds. 1. Commissioners' note says: "Statutes 1863, 158. The section referred to is section 103 of the Crimes and Punishment Act of 1851, word 'information' is used in place of the word 'complaint,' as more fully expressive. That a person named is menacing or threatening to do toward or against the person or property of another an act which the Penal Code forbids to be done, or is omitting to do that which it commands, must be subject of the information provided for in the text. The threat or intention to commit the offense must be one which will be executed unless the person so threatening is further restrained than he seems to be by the fact that that act is in violation of the law." 2. Justices of peace have full and complete jurisdiction over proceedings for security to keep the peace.-Holliday v. Holliday, 123 Cal. 26, 32, 55 Pac. 703. See 53 Pac. 42. 3. Same-Appeal from order.-Not provided for, and a superior court, in entertaining an appeal from the magistrate's order, acts in excess of its jurisdiction. Ross v. Superior Court, 39 Cal. App. 590, 179 Pac. 536. See, also, post, § 706, note par. 2. 4. Power of magistrate.—Investment in Liberty bonds required by order of magistrate, and that defendant give such bonds to his wife, is beyond the power of the magistrate, and will be vacated and annulled.-Ross v. Superior Court, 39 Cal. App. 590, 179 Pac. 536. § 702. EXAMINATION OF COMPLAINANT AND WITNESSES. When the information is laid before such magistrate he must examine on oath the informer, and any witness he may produce, and must take their depositions in writing, and cause them to be subscribed by the parties making them. History: Enacted February 14, 1872, substantial re-enactment of § 21 Criminal Practice Act 1851, Stats. 1851, p. 214. 1. Commissioners' note. 2. Defendant, discharge on habeas corpus. "This 1. Commissioners' note says: should be in concise language, stating all the jurisdictional facts, and should clearly specify threatened offense, and when reduced to writing and sworn to constitutes complaint or information upon which warrant issues." 2. Defendant entitled to discharge on habeas corpus when deposition of informer is not taken before issuing warrant for arrest of defendant and written information did not show facts sufficient to justify issuance of warrant.-Ex parte Conner, 3 Cal. App. 241, 84 Pac. 999. § 703. WARRANT OF ARREST. If it appears from the depositions that there is just reason to fear the commission of the offense threatened, by the person so informed against, the magistrate must 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 information, and commanding the officer forthwith to arrest the person informed of and bring him before the magistrate. History: Enacted February 14, 1872, re-enactment of § 22 Criminal Practice Act 1851, Stats. 1851, p. 214. § 704. PROCEEDINGS ON CHARGES BEING CONTROVERTED. When the person informed against is brought before the magistrate, if the charge be controverted, the magistrate must take testimony in relation thereto. evidence must be reduced to writing and subscribed by the witnesses. The [Testimony may be taken in shorthand.] The magistrate may, in his discretion, order the testimony and proceedings to be taken down in shorthand, and for that purpose he may appoint a shorthand reporter. The deposition or testimony of the witnesses must be authenticated in the form prescribed in section eight hundred sixty-nine of this code. History: Enacted February 14, 1872, a re-enactment of § 23 Criminal Practice Act, 1851, Stats. and Amdts. 1851, p. 214; amended April 20, 1917, Stats. and Amdts. 1917, p. 146. In effect July 27, 1917. § 705. PERSON COMPLAINED OF, WHEN TO BE DISCHARGED. If it appears that there is no just reason to fear the commission of the offense alleged to have been threatened, the person complained of must be discharged. History: Enacted February 14, 1872, re-enactment of § 24 Criminal Practice Act 1851, Stats. 1851, p. 214. 1. Reason to fear.-Magistrate to determine whether prosecuting witness has just to fear commission of alleged offense at time of commencement of proceed reason ings, not when hearing is had.-State v. Sayer, 35 Ind. 379; State v. Steward, 48 Ind. 146. |