see post, $$ 869 and 1213, and notes. The certificate must set forth actual compliance with all requirements of the statute-6 Cal. 559; a mere jurat is not admissible-54 id. 575. Query: Is this section constitu tional?-54 Cal. 575. See Const. Cal. art. i, § 13. 687. No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted. Jeopardy.-Jeopardy attaches when a party is once placed upon his trial before a competent court, on a valid indictment, and an acquittal before the jury or a discharge of the jury without consent of prisoner -4 Cal. 376; 5 id. 278; 38 id. 467; 48 id. 329: 8 Blatchf. 526; 15 Ark. 261; 1 Bail. 651; 3 Brev. 421; 16 Conn. 54; 3 Cush. 212; 6 Ark. 169; 7 Ga. 422; 3 Hawks, 381; 2 Halst. 172; 17 Mass. 515; 7 Mo. 644; 19 id. 683; 3 Smedes & M. 751; 3 Tex. 118; 1 Swan, 14; 2 Tyler, 471; 8 Wend. 640; 7 Port. 187. See Const. Prov. art. i, § 13, ante, p. 17; and see Desty's Const. Cal. art. i, § 13, and notes. 688. 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. Defendant need not be a witness in his own behalf-36 Cal. 522; and his refusal, not to prejudice his case-53 id. 66; 36 id. 522; and see Const. Prov. ante, p. 18. He is to be free from shackles and bonds-42 Cal. 167. The common-law rule obtains-6 Harg. St. Tri. 230, 231,244; 1 Leach, 36. 689. 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. [In effect February 25th, 1880.] If defendant does not plead, judgment may be pronounced against him-28 Cal. 265; 29 id. 562. See post, § 1011, and notes. TITLE I. Of the Prevention of Public Offenses. OF THE INTERVENTION OF THE OFFICERS OF III. SECURITY TO KEEP THE PEACE, §§ 701-14. 720. V. SUPPRESSION OF RIOTS, §§ 723-33. § 692. CHAPTER I. OF LAWFUL RESISTANCE. Lawful resistance, by whom made. $ 693. By the party, in what cases and to what extent. § 694. By other parties, in what cases. 692. Lawful resistance to the commission of a public offense may be made 1. By the party about to be injured. 2. By other parties. See Civ. Code, §§ 23-26; 43-50. 693. 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. Subd. 1. Force and resistance.-The right of resistance is based on necessity-27 Cal. 572. It arises where one manifestly intends to commit a felony on the person, habitation, or property of another-9 Iowa, 188; 20 id. 569; 32 id. 36; 8 Bush, 481; 23 Ala. 28; 6 Bush, 312; 8 Mich. 150; 18 Ga. 194; 1 Ohio St. 66; Thach. C. C. 471; 3 Wash. C. C. 515; 15 Ohio St. 47. Its rules extend to the relations of parent and child, husband and wife, master and servant, and brother and sister18 Ga. 704; 17 Ala. 587; 8 Mich. 150; 35 Ind. 492; 56 id. 123; 30 Miss. 619; 19 Ohio St. 387; 1 Wis. 165. The law of self-defense does not require one to seek the protection of the law-3 Hun, 716; see 71 Ill. 193; 3 Hun, 716; 5 Oreg. 491; 23 N. J. Eq. 251; 65 Me. 426. See resisting officer, ante, § 148. See Desty's Crim. Law, § 31 and notes, § 99 g. Subd. 2. Protection of property.-The law of resistance extends to the defense of the habitation-1 Car. & P. 319; and the owner may use force necessary to repel an assault-8 Cal. 341; Addis. 246. So, an unwelcome visitor may be ejected by force, without calling in a magistrate-45 Barb. 262; 2 Met. 23; 6 Barb. 608; 1 Watts & S. 90; 1 Fost. & F. 416. It extends to the protection of property before taken, but not to its recovery after it is taken, unless it can be retaken without undue violence-11 N. H. 540. Illegal official action may be forcibly resisted8 Pick. 133; 11 Price, 235; see 123 Mass. 420. See Desty's Crim. Law, §76, and notes. Resisting trespass.-The owner of property in possession of the same may use as much force as is necessary, to prevent a forcible trespass-8 Cal. 341; but no more force than is necessary-59 Ala. 1; life cannot be taken in resistance of a mere trespass-id. 2 Halst. 220; 4 Mass. 391; 58 Ga. 35; 23 Ala. 28; 24 id. 67; and if life be taken, it is murder or manslaughter, according to the circumstances-4 Mass. 391; 17 Iowa, 138. A bare fear of destruction to property, or of loss of life, or great bodily harm, is not sufficient to justify-43 Cal. 447; 3 Greene, (Iowa) 435; 41 Ga. 527; 42 id. 609; so, when a peaceable trespasser is ordered away and does not go immediately, and the owner kills him, it is murder-10 Cal 83. A tenant may forcibly prevent a former tenant from removing windows placed by him in a house during his prior tenancy-11 N. H.540; and see 4 Allen, 318; but a tenant in common cannot remove the agent of his cotenant-4 Allen, 316; nor prevent the removal of his property-4 Cush. 597. 694. Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense. 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. Public offenses may be prevented by the intervention of the officers of justice: 1. By requiring security 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. Subd. 1. See post, § 706. Subd. 3. See post, §§ 817, 836-838. 698. 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. See post, §§ 817, 723, and ante, § 697, note. |