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half the largest fine which may be imposed upon a conviction for the offense so attempted.

Subds. 1 and 2. Attempts to commit crime: See the construction of subdivisions 1 and 2 by the supreme court in Ex parte Hope, 59 Cal. 423.

665. Restrictions upon the preceding sections.

SEC. 665. The last two sections do not protect a person who, in attempting unsuccessfully to commit a crime, accomplishes the commission of another and different crime, whether greater or less in guilt, from suffering the punishment prescribed by law for the crime committed.

666. Second offense, after conviction of former offense.

SEC. 666. Every person who, having been convicted of any offense punishable by imprisonment in the state prison, commits any crime after such conviction, is punishable therefor, as follows:

1. If the offense of which such person is subsequently convicted is such that, upon a first conviction, an offender would be punishable by imprisonment in the state prison for any term exceeding five years, such person is punishable by imprisonment in the state prison not less than ten years;

2. If the subsequent offense is such that, upon a first conviction, the offender would be punishable by imprisonment in the state prison for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding ten years;

3. If the subsequent conviction is for petit larceny, or any attempt to commit an offense which, if committed, would be punishable by imprisonment in the state prison not exceeding five years, then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding five years.

Second offense.-Subd. 1. Conviction of assault to rob, having been previously convicted of grand larceny, renders defendant liable to imprisonment for his natural life, or for at least ten years: People v. Brooks, 3 West Coast Rep. 53.

Subd. 2. A defendant convicted of burglary in the second degree and of a previous conviction of grand larceny may be sentenced to imprisonment for a term of ten years: People v. Brooks, 3 West Coast Rep. 57.

Increased punishment.-In People v. Stanley, 47 Cal. 113, it was held that to subject a person to an increased punishment for a second offense, under this section, was not putting him twice in jeopardy for the same offense. Similar decisions have been rendered in other states under like statutes: Rand v. Commonwealth, 9 Gratt. 743; Ross's Case, 2 Pick. 170; Plumbly v. Commonwealth, 2 Met. 413; see sec. 667, note. At the session of the legislature of 1880, section 969, which pointed out the manner that a former conviction should be pleaded, was repealed. In People v. Cariton, 7 Pac. C. L. J. 108, it was held that the charge of a previous conviction could be made in an information as well as in an indictment, but the way that it should be set forth in an indictment or information, section 969 having been repealed, was

not pointed out. In People v. Johnson, Id. 168, notwithstanding the defendant pleaded guilty to the charge of former conviction, it was held proper for the prosecution to ask him on crossexamination, for the purpose of impeaching him, whether he had not been previously convicted of such offense. In People v. Delany, 49 Cal. 394, the defendant pleaded "guilty of the offense charged in the indictment,' which charged the offense of petit larceny committed after a previous conviction for petit larceny, and it was held that she must be sentenced for a felony.

Subd. 3. A conviction of petit larceny and a former conviction for grand larceny subjects a party to be punished as for a felony: People v. King, 64 Cal. 338. Conviction of petit larceny after previous conviction of petit larceny: People v. Carlton, 57 Id. 559.

Constitutionality of such legislation as is had in this section was upheld in People v. King, 64 Cal. 338, citing Ex parte Gutierrez, 45 Id. 429; Plumbly v. Commonwealth, 2 Met. 413. See note to next section.

Previous conviction, duty of jury to find on: See sec. 1158, post.

Practice on confessing previous conviction: Secs. 1093, 1158, post.

667. Second offense after conviction of attempt to commit state-prison offense. SEC. 667. Every person who, having been convicted of petit larceny, or of an attempt to commit an offense which, if perpetrated, would be punishable by

imprisonment in the state prison, commits any crime after such conviction, is punishable as follows:

1. If the subsequent offense is such that, upon a first conviction, the offender would be punishable by imprisonment in the state prison for life, at the discretion of the court, such person is punishable by imprisonment in such prison during life;

2. If the subsequent offense is such that, upon a first conviction, the offender would be punishable by imprisonment in the state prison for any term less than for life, such person is punishable by imprisonment in such prison for the longest term prescribed, upon a conviction of such first offense;

3. If the subsequent conviction is for petit larceny, or for an attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the state prison, then such person is punishable by imprisonment in such prison not exceeding five years.

Constitutionality.—In Ex parte Gutierrez, 45 Cal. 432, this section was held not to be objectionable as an ex post facto law, because the first offense was committed before the section was adopted. The section provides for the punishment of certain offenses, and makes the degree of punishment dependent upon whether the person has ever before been convicted of a similar offense, and it makes no difference whether such first offense was committed prior to the adoption of the law or not. "By the rule announced in the code, any person in the situation of the prisoner, that is, any person who had already been convicted of the offense of petit larceny, who should again, and subsequently to the taking effect of the code, commit

the offense of petit larceny, is to be deemed a
felon, and punished by imprisonment in the
state prison. The act to be punished is, how-
ever, only that act done by the prisoner after
the code took effect; and therefore, in no sense
can the code be said to become ex post facto
when applied to the case of the prisoner."
This decision was followed in People v. King,
64 Cal. 338.

Challenges accused entitled to.-Under
this and the following sections to 671 inclusive,
the defendant being charged with robbery,
and having been previously convicted of petit
larceny, he was entitled to twenty peremptory
challenges: People v. O'Neil, 61 Cal. 435.

668. Foreign conviction for former offense.

SEC. 668. Every person who has been convicted in any other state government, or country, of an offense which, if committed within this state, would be punishable by the laws of this state by imprisonment in the state prison, is punishable for any subsequent crime committed within this state in the manner prescribed in the last two sections, and to the same extent as if such first conviction had taken place in a court of this state.

See also sec. 656.

669. Second term of imprisonment, when to commence.

SEC. 669. When any person is convicted of two or more crimes before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.

670. When term of imprisonment commences, etc.

SEC. 670. The term of imprisonment fixed by the judgment in a criminal action commences to run only upon the actual delivery of the defendant at the place of imprisonment, and if thereafter, during such term, the defendant by any legal means is temporarily released from such imprisonment and subsequently returned thereto, the time during which he was at large must not be computed as part of such term.

671. Imprisonment for life.

SEC. 671. Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of

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years, and no limit to the duration of such imprisonment is declared, the court authorized to pronounce judgment upon such conviction may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than that prescribed.

Imprisonment for life.-See application of this section to a conviction of assault to rob after a previous conviction of grand larceny,

672. Fine may be added to imprisonment.

under subdivision 1 of section 666: People v. Brooks, 3 West Coast Rep. 53.

SEC. 672. Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender, not exceeding two hundred dollars, in addition to the imprisonment prescribed.

673. Civil rights of convict suspended.

SEC. 673. A sentence of imprisonment in a state prison for any term less than for life suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority, or power during such imprisonment.

674. Civil death.

SEC. 674. A person sentenced to, imprisonment in the state prison for life is thereafter deemed civilly dead.

675. Limitation on two preceding sections.

SEC. 675. The provisions of the last two preceding sections must not be construed to render the persons therein mentioned incompetent as witnesses upon the trial of a criminal action or proceeding, or incapable of making and acknowledging a sale or conveyance of property. [Amendment, approved March 30, 1874; Amendments 1873-4, 435; took effect July 1, 1874.]

676. Person of convict protected.

SEC. 676. The person of a convict sentenced to imprisonment in the state prison is under the protection of the law, and any injury to his person, not authorized by law, is punishable in the same manner as if he was not convicted or sentenced.

677. Forfeitures.

SEC. 677. No conviction of any person for crime works any forfeiture of any property, except in cases in which a forfeiture is expressly imposed by law; and all forfeitures to the people of this state, in the nature of a deodand, or where any person shall flee from justice, are abolished.

"The very salutary and almost indispensable provisions contained in this title were either wholly taken from or suggested by the Penal Code of New York, 272-279, and seemed to be so obviously appropriate as a complement to a thorough administration of penal law, that their future use will give rise to the inquiry, How did our courts succeed so well without them? The act of April 16, 1850-crimes and punishments of this state-was taken almost

literally from the New York code, hence their great similarity, notwithstanding very many changes have been made during a series of years in legislating in each of the states. It would be wise and beneficial if the penal laws of all the states were exact copies of each other, so that the decisions of the courts of one might be available to the others: " Code commission. ers' note.

678. Valuation of property under this code to be estimated in gold coin.

SEC. 678. Whenever in this code the character or grade of an offense, or its punishment, is made to depend upon the value of the property, such value shall be estimated exclusively in United States gold coin. [New section, approved March 30, 1874; Amendments 1873-4, 435; took effect July 1, 1874.]

PART II.

OF CRIMINAL PROCEDURE.

PRELIMINARY PROVISIONS.

681. No person punishable but on legal conviction.

SEC. 681. No person can be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof.

Constitutional guaranty: Art. 1, sec. 13, Const. Cal.

Conviction of public offense: See post, sec. 689.

Conviction. The ordinary legal meaning of the term "conviction," when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while "judgment" or "sentence is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained: Commonwealth v. Lockwood, 109 Mass. 323. A convic

682. Public offenses, how prosecuted.

tion is the legal proceeding of record which
ascertains the guilt of a party, and upon which
the sentence or judgment is founded: 1 Bouv.
Law Dict. 362. The conviction, in this state,
may be had: 1. By verdict of a jury; 2. On
confession by defendant in open court; 3. By
judgment of an authorized court in certain
cases, without confession, or the verdict of a
jury: See sec. 689.

The rights of persons charged with crime are
secured to them by section 13, article 1, of the
constitution.

Trial: Sec. 1093, note.

Verdict: Sec. 1147, note.

Judgment, form of: Sec. 1202, note.
Execution: Sec. 1213, note.

SEC. 682. 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 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.

[Amendment, approved April

9, 1880; Amendments 1880, 10 (Ban. ed. 155); took effect immediately.]

Cited generally: People v. Carlton, 57 Cal.

559, 561.

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Removal of officers otherwise than by impeachment: Sec. 758, note.

2084.

Courts-martial: See Pol. Code, secs. 2076

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Justices' and police courts: Sec. 1426, note.

SEC. 683. 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.

684. Parties to a criminal action.

SEC. 684. 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. Violation of city ordinance.-An action should be brought in the name of the people: in the police court for the violation of a city Santa Barbara v. Sherman, 61 Cal. 57. ordinance, and to enforce the penalty thereof,

685. The party prosecuted known as defendant.

SEO. 685. The party prosecuted in a criminal action is designated in this code as the defendant.

686. Rights of defendant in a criminal action.

SEC. 686. 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 cannot with due diligence be found within the state.

Subd. 1. Public trial.-An order excluding from the court-room such of the jurors summoned for the term as are not impaneled to try the case is not a deprivation of the right of public trial: People v. Sprague, 54 Cal. 491.

Subd. 2. Argument of counsel-The court may limit the defendant's counsel to a reasonable time in the argument of a case; yet if without consent such limitation is imposed, and the accused is thereby deprived of the opportunity of a full defense, a new trial will be granted: People v. Keenan, 13 Cal. 581.

Subd. 3. Confronted with witnesses. "There can be little doubt of the meaning of the foregoing citation [this subdivision]. The defendant is entitled 'to be confronted with the witnesses against him, in the presence of the court,' that is, the court in which the action' is being tried, except in the instances specified." Therefore, reporter's notes of testimony given by a witness at a former trial and now out of the state are inadmissible: People v. Chung Ah Chue, 57 Cal. 567, 568.

Depositions taken upon a preliminary examination before a committing magistrate may be used upon the trial of a defendant if it

appears that the witness is dead, insane, or cannot be found within the state: People v. Curtis, 50 Cal. 96. Where, however, the wit ness is within the reach of a subpoena, but too unwell to appear in court, his deposition is not admissible: People v. Bojorquez, 55 Id. 463; see People v. Gannon, 61 Id. 476, where the court was justified in finding that the witness could not with reasonable and due diligence be found within the state.

Depositions to be admissible at all as evidence must be taken in the manner and form, and certified as required by section 869: People v. Morine, 54 Cal. 575. The certificate required by the latter section must set forth an actual compliance with all the requirements of the statute: Williams v. Chadbourne, 6 Id. 559; People v. Morine, 54 Id. 575. The jurat of the committing magistrate is not such a certificate as is required: People v. Morine, Id. 577. This section and section 869, in regard to preliminary examination and the admissibility of depositions therein taken, are constitutional: People v. Oiler, 4 West Coast Rep. 383.

Depositions as evidence: Secs. 869, 1345, 1362, and notes to these sections.

687. Second prosecution for the same offense prohibited

SEC. 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: See a valuable discussion of this subject in the note to Roberts v. State, 58 Cal. 536, 548. In both the state and the federal constitutions it is provided that no person shall be twice put in jeopardy for the same offense: Const. Cal., sec. 13, art. 1; U. S. Const., amend. 5. It is held that when a person is once placed upon his trial before a competent court and jury, charged with his case upon a valid indictment, he is in jeopardy, unless such jury be discharged without rendering a verdict from a legal necessity or cause beyond the control of the court, such as death, sickness, or insanity of one of the jury, or of the prisoner, or the court, or unless the jury be discharged by consent of the prisoner: People v. Webb, 38 Cal. 467; Ex parte Hartman, 44 Íd. 32. Sickness of juror: See People v. Stewart, 64

Id. 60. Among these unavoidable necessities is the inability of the jury to agree after a reasonable time for deliberation: People v. Cage, 48 Id. 324; Ex parte McLaughlin, 41 Id. 211. So, also, when the defendant during the trial for a felony flees, and not being able to be found, the jury is discharged: People v. Higgins, 59 Id. 357. If the defendant be acquitted on the ground of variance between the allegations in the indictment and the proofs, and the variance is immaterial, he cannot be again tried for the same offense. But if the variance be material, the acquittal will not bar another prosecution: People v. Hughes, 41 Id. 234; People v. McNealy, 17 Id. 332. Where the defendant is tried and convicted, and does not move for new trial, but appeals to the supreme court, and that court reverses the judgment and or

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