mitting a minor child to the industrial school, does not amount to a criminal prosecution, nor to procedure according to the course of the common law, and the minor, therefore, is not entitled to a trial by jury-51 Cal. 280. Aliens are not entitled to a jury of one-half aliens -51 Cal. 597. See ante, page 16.

.

1043. 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 defendant; 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. [In effect April 9th, 1880.]

Right to appear in person-42 Cal. 168. See Const. Prov. ante, p. 16. It is error to declare a bond forfeited because defendant failed to appear personally at the trial-6 Pac. C. L. J. 450; 23 Cal. 158. See ante, §§ 976, 1016. Distinction between felonies and misdemeanors-see ante, § 17. Where one is indicted for a felony, and has been committed to bail, the court should at the commencement of the trial, order him into actual custody-49 Cal. 42.

CHAPTER VIII.

FORMATION OF THE TRIAL JURY AND THE CALENDAR OF ISSUES FOR TRIAL.

§ 1048.

Order of disposing of issues on the calendar.

§ 1049. Defendant entitled to two days to prepare for trial.

1046. Trial juries for criminal actions are formed in the same manner as trial juries in civil actions.

Impanneling trial jurors-see Code Civ. Proc. §§ 246, 247; see post, § 1074, note. If jurors are not drawn and summoned to attend the term of the court, an order may forthwith issue directing the sheriff to summon them-47 Cal. 95; 5 Blatchf. 204; and it is immaterial whether the cause for the necessity arose before or after the commencement of the term-43 Cal. 349; 4 id. 225; 21 id. 400. The names of all jurors selected, whether as grand or trial jurors, are to be placed in the same box-6 Pac. C. L. J. 399. A trial jury must consist of twelve, and defendant cannot consent to a less number-48 Cal. 258; 46 id. 122; 37 id. 677. The omission of the clerk to insert, in his certificate of the drawing, the date of the order for the drawing, is not a fatal error-6 Pac. C. L. J. 882. If, though legally drawn, they have not been summoned, the court may order them summoned-46 Cal. 47.

1047. 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. [In effect April 9th, 1880.]

1048. The issues on the calendar must be disposed of in the following order, unless for good cause the court shall direct an action to be tried out of its order:

1. Prosecutions for felony, when the defendant is in custody.

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. [In effect April 9th, 1880.]

A felony is a crime which is or may be punishable with death, or by imprisonment in the State prison-see Desty's Crim. Law, § 3, and note; see also_ante, § 17. Every other crime is a misdemeanor-see Desty's Crim. Law, § 4, and note; see also ante, § 17.

1049. After his plea, the defendant is entitled to at least two days to prepare for trial.

CHAPTER IX.

POSTPONEMENT OF THE TRIAL.

§ 1052. Postponement, when, and how ordered.

1052. When an action is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day. [In effect April 9th, 1880.]

Postponement of trial.-Sickness of defendant's counsel-4 Cal. 188, or surprise at the withdrawal of a witness is a ground-4 Tex. 260; 46 Ga. 208. The surprise must be shown by affidavit, or in some other proper form-22 Cal. 348. The absence of witnesses is a ground for continuance-6 Cal. 249; 28 id. 445. A motion on this ground should distinctly state that to which they would testify-48 Cal. 63. Where there is a sufficient showing as to their materiality, and no apparent lack of diligence, the motion should be granted-46 Cal. 103; 41 id.461; 28 id. 447. The court will not grant the motion when the absent witnesses are beyond its process-49 Cal. 580; 1 Const. S. C. 234; 3 Brev. 304; 2 Halst. 220; 1 Mass. 6; 8 Gratt. 695; 2 Sum. 19; and where they had made depositions before the examining court-49 Cal. 580; but see 43 Mo. 127; nor, where the facts shown.cast suspicion on the good faith of the applicant-46 Cal. 120; nor, where he is guilty of laches and delays-29 id. 562; 1 Ashm. 281; 9 Dana, 302; 12 Fla. 562; 28 Ind. 22; 12 Gratt. 564; 28 id. 930; 54 Mo. 274; 68 id. 305; 6 Rand. 673; 1 Mass. 9; 2 Va. Cas. 156; nor, of any connivance-10 Gratt. 658; nor, where the testimony sought is immaterial-43 Cal. 47; 4 id. 238; 3 Brev. 304; 17 Ga. 439; 21 Tex. 337; 45 Ill. 152; 5 Leigh, 715; nor, where the opposite party concedes the fact sought to be proved-34 Ga. 348; 60 IIl. 168; 33 Miss. 48; 3 Parker Cr. R. 199; but the admission of the prosecuting attorney, that the absent witness told the prosecuting witness of the fact, will not defeat the motion-54 Cal. 243; see 28 id. 445; 1 Meigs, 195; 26 Ind. 30; 29 Tex. 464. A continuance as to one of several defendants does not involve the trials as to another-31 Ind. 262.

Affidavit.-The affidavit, on the ground of absence of witnesses, must show due diligence to procure their attendance, setting forth the facts-1 Cal. 403; 4 id. 241; 8 id. 89; 24 id. 38; 34 id. 663; 6 Pac. C. L. J. 323; 14 Bush, 106; 68 Mo. 444; as, by exhausting the process of the court, or otherwise-4 Cal. 238; 38 id. 188; 24 id. 31; and the service of the process must be described as such as would command obedience under the law-29 id. 562; and that the witnesses cannot be readily reached by attachment-47 id. 108. It should state that there is reasonable ground to believe that the delay will tend to the furtherance of justice, and that their attendance or testimony will be obtained at the time to which the trial is deferred-53 Cal. 613; 41 id. 458; 38 id. 188; 8 Gratt. 695; 15 Ga. 535; 42 Ind. 244; id. 544; 59 Mo. 418; 2 Va. Cas. 156; 68 Mo. 91; and that he cannot prove the same facts by other witnesses -47 Cal. 100; 48 id. 63; 23 id. 158; 8 id. 89; 4 id. 240. Where the affidavit contradicted his testimony taken before the grand jury, the application is properly denied-53 Cal. 494. So, where the affidavit shows that the witness is a fugitive from justice, and cannot probably be produced-49 Cal. 580. See post, § 1433.

TITLE VII.

Of Proceedings after the Commencement of the Trial and before Judgment.

CHAP I. CHALLENGING THE JURY, §§ 1055-88.

II. THE TRIAL, §§ 1093-1131.

III.

CONDUCT OF THE JURY AFTER CAUSE IS SUB

MITTED TO THEM, §§ 1135-43.

IV. THE VERDICT, §§ 1147-67.

V. BILLS OF EXCEPTION, §§ 1170-6.
VI. NEW TRIALS, §§ 1179-82.

VII. ARREST of Judgment, §§ 1185–8.