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1012. When objections, forming ground of demurrer, must or may be taken. SEC. 1012. When the objections mentioned in section ten hundred and four appear on the face of the indictment or information they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, or after the trial, in arrest of judgment. [Amendment, approved April 9, 1880; Amendments 1880, 19 (Ban. ed. 164); took effect immediately.]

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SEC. 1016. There are four kinds of pleas to an indictment, or information. A plea of:

1. Guilty;

2. Not guilty;

3. A former judgment of conviction or acquittal of the offense charged, which may be pleaded either with or without the plea of not guilty;

4. Once in jeopardy. [Amendment, approved April 26, 1880; Amendments 1880, 44 (Ban. ed. 521); took effect from passage.]

Subd. 4. Once in jeopardy is added by the amendment.

1017. Pleas, how put in, and form.

SEC. 1017. Every plea must be oral, and entered upon the minutes of the court in substantially the following form:

1. If the defendant plead guilty: "The defendant pleads that he is guilty of the offense charged."

2. If he plead not guilty: "The defendant pleads that he is not guilty of the offense charged."

3. If he plead a former conviction or acquittal: "The defendant pleads that he has already been convicted (or acquitted) of the offense charged by the judgment of the court of (naming it), rendered at (naming the place),

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4. If he plead once in jeopardy: "The defendant pleads that he has been once in jeopardy for the offense charged (specifying the time, place, and court)." [Amendment, approved April 26, 1880; Amendments 1880, 44 (Ban. ed. 521); took effect from passage.]

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an arraignment nor plea is a nullity, and no valid judgment can be rendered thereon: People v. Corbett, 28 Cal. 328; People v. Gaines, 52 Id. 479; Douglass v. State, 3 Wis. 820; State v. Saunders, 53 Mo. 234; State v. Montgomery, 63 Id. 296. In all cases amounting to a felony the defendant must plead in person: Secs. 1017, 1018; People v. Corbett, 28 Cal. 328; but see People v. Thompson, 4 Id. 241. A plea by his attorney for him is a nullity: McQuillen v. State, 8 Smed. & M. 587; Younger v. State, 2 W. Va. 579. In cases of misdemeanor the defendant may plead in person or by attorney: People v. Ebner, 23 Cal. 158; see People v. Budd, 7 Pac. C. L. J. 486.

Subd. 1. Plea of guilty.-This plea can only be put in by the defendant himself in open court, unless upon indictment against a corporation, in which case it may be put in by counsel: Sec. 1018; People v. Thompson, 4 Cal. 238; People v. McCrory, 41 Id. 458. Though no judgment is pronounced upon such a plea, it is a good defense if pleaded to another indictment for the same offense: People v. Goldstein, 32 Id. 432. In People v. Delany, 49 Id. 394, the defendant pleaded "guilty of the offense charged in the indictment," and the indictment charged the offense of petit larceny, committed after a previous conviction for petit larceny; the plea was held to confess the offense charged, which included the previous conviction, and that the defendant was properly sentenced for a felony. If a defendant pleads guilty to an indictment which charges an offense which is divided into degrees, the court before passing sentence must ascertain the degree: People v. Jefferson, 52 Id. 452.

Withdrawing plea: Sec. 1018, notes. Subd. 2. Plea of not guilty.-This plea puts in issue every material allegation of an indictment: Sec. 1019. If the offense charged amounts to a felony, it is the better practice to have the defendant plead in person; although in People v. Thompson, 4 Cal. 241, under sections 299 and 301 of the criminal practice act, which are in substance the same as sections 1017 and 1018 of this code, it was held that it is "unnecessary for the prisoner to be present and plead, except in case where he pleads guilty." In that case the defendant was convicted of murder upon a plea of not guilty put in for him by his attorney. Under this plea the insanity of the prisoner at the time of the commission of the offense may be shown: People v. Olwell, 28 Id. 456. So the fact of drunkenness at the time the crime was committed may be given in evidence under this plea, not as a defense, but to determine the state or condition of the mind, and its capacity to form an intent: People v. King, 27 Id. 507; sec. 22, note.

The prosecution must prove the locus delicti,
upon a plea of not guilty: People v. Bevans, 52
Id. 470; sec. 777, note.
Drunkenness: Sec. 22, notes.

Insanity: Sec. 26, subd. 3, and notes.

Evidence under plea of not guilty: Sec. 1020. Subds. 3, 4. Former jeopardy-Once in jeopardy: See sec. 687, note. Where there is a plea of not guilty and also a plea of former conviction, the defendant is entitled to a verdict on each plea. A verdict of guilty is insufficient: People v. Kinsey, 51 Cal. 278; People v. Helbing, 59 Id. 567; People v. Fuqua, 61 Id. 377. And where the record is silent, showing no finding by the jury upon the plea of former acquittal, the court will not presume that that defense was withdrawn: People v. Fuqua, supra.

The pleas of former acquittal and once in jeopardy may be entered after a new juror had been sworn to take the place of one taken sick during the trial, and before the commencement of the trial anew: People v. Stewart, 64 Cal. 60.

But cannot be interposed on a new trial ordered by the supreme court upon a reversal for insufficiency of evidence to justify the verdict of guilty: People v. Hardisson, 61 Cal. 378. Where a judgment of conviction of murder has been reversed on appeal by defendant and remanded for further proceedings, because of a defective information, and the action is dismissed under section 1385, and a new information filed for the same offense, the defendant cannot plead once in jeopardy and former conviction as a bar: People v. Schmidt, 64 Id. 260.

The murder of two persons by the same act, according to the weight of authority, constitutes two offenses, for each of which a separate prosecution will lie, and a conviction or acquittal in one case does not bar a prosecution in the other. And further, where two persons are directly concerned in the murder of two others at the same time, it does not follow that the murder was accomplished by the same act: People v. Majors, 2 West Coast Rep. 580.

1018. Plea of guilty, how put in, and when it may be withdrawn.

SEC. 1018. A plea of guilty can be put in by the defendant himself only in open court, unless upon indictment or information against a corporation, in which case it may be put in by counsel. The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted. [Amendment, approved April 9, 1880; Amendments 1880, 19 (Ban. ed. 165); took effect immediately.]

Withdrawing plea.-Permitting the defendant to withdraw a plea of not guilty for the purpose of demurring to the indictment, or of moving to set it aside, is a matter vested largely in the discretion of the trial court, and its ruling will not be disturbed unless there has been a manifest abuse of such discretion: People v. Lee, 17 Cal. 76. When it appears that a plea of guilty has been entered through inadvertence and without due deliberation, or ignorantly, and mainly from the hope that the punishment to which the accused would otherwise be exposed may be mitigated, great indulgence should be shown in permitting such plea to be withdrawn. Refusal to allow the defendant to withdraw his plea of guilty under Buch circumstances will amount to an abuse of

the discretion vested in the trial court: People v. McCrory, 41 Id. 458. So where there was doubt of the sanity of the accused at the time his plea of guilty was entered, and the court ought to have allowed him to withdraw it and plead not guilty: People v. Scott, 59 Id. 341. See also People v. Lewis, 64 Id. 401, where, after a plea of not guilty, the court was held to have properly refused to permit the plea of guilty of prior conviction to be entered. There was no abuse of discretion in the court's allow. ing defendant to withdraw the plea of not guilty, and to interpose a demurrer and motion to set aside the information: People v. Ah Fook, Id. 380.

Pleas generally: Sec. 1016, note.

1019. What plea of not guilty puts in issue.

SEC. 1019. The plea of not guilty puts in issue every material allegation of the indictment or information. [Amendment, approved April 9, 1880; Amendments 1880, 19 (Ban. ed. 165); took effect immediately.]

Plea of not guilty: See sec. 1016 in note. "All matters of fact tending to establish a defense, except a former acquittal or conviction,

or once in jeopardy, may-be proved under a plea of the general issue:" People v. Ah Lee, 60 Cal. 85, 86.

1020. What may be given in evidence under plea of not guilty.

SEO. 1020. All matters of fact tending to establish a defense, other than that specified in the third and fourth subdivisions of section one thousand and sixteen, may be given in evidence under the plea of not guilty. [Amendment, approved April 26, 1880; Amendments 1880, 44 (Ban. ed. 522); took effect from passage.]

Evidence under plea of not guilty.-Section cited and applied: People v. Ah Lee, 60 Cal. 85; sec. 1016 in note. Evidence of intoxication is admissible in cases of homicide, as

1021. What is not a formal acquittal.

going to the intent: People v. Ferris, 55 Id. 5SS; and see People v. De la Cour Soto, 63 Id. 165; People v. Jones, 64 Id. 168.

SEC. 1021. If the defendant was formerly acquitted on the ground of variance between the indictment or information and the proof, or the indictment or information was dismissed upon an objection to its form or substance, or in order to hold the defendant for a higher offense, without a judgment of acquittal, it is not an acquittal of the same offense. [Amendment, approved April 19, 1880; Amendments 1880, 19 (Ban. ed. 165); took effect immediately.]

Variance between indictment or infor. mation and proof. —An acquittal of a defend. ant because of a variance between the proof and the indictment is no bar to a second indictment, if the variance is such that a conviction was legally impossible upon the first indict ment. It being legally impossible to have convicted the defendant, he has never been "in jeopardy:" People v. McNealy, 17 Cal. 332; see People v. March, 6 Id. 543. If, however, the variance is immaterial, an acquittal of the defendant, because of such variance, will bar any subsequent prosecution for the same offense. An error of the court in regarding as material a variance between the allegations and proof will not render the acquittal less available and conclusive as a bar to a subsequent prosecution. The question to be determined under the plea of former acquittal is, Would the evidence which is necessary to support the second indictment have been sufficient to procure a legal conviction on the first? If it would, the acquittal is a bar to a subsequent prosecution; and if not, it is no bar: People v. Hughes, 41 Id. 234. Where the subject of the assault named 1022. What is a formal acquittal.

in the information was charged to be one John Carl, and his real name was John Carlin, the court may, where defendant is acquitted on the ground of variance, direct the district attorney to amend his information. If, however, the court will not so direct, a new information may be filed without the order of court; an appeal by the district attorney effects nothing, and will be dismissed: People v. Allen, 61 Id. 140. The mere opinion of a judge, that the evidence shows the defendant to be guilty of a higher degree of crime, does not authorize him to discharge the jury without the defendant's consent, and hold the defendant for the higher offense. Such discharge amounts to an acquittal, and the defendant cannot be again tried for that offense: People v. Hunckeler, 48 Id. 331.

A variance in the name of the insurance company given in an indictment for arson, to defraud, and that as proved is no ground for an arrest of judgment: People v. Hughes, 29 Cal. 257. Immaterial variance in indictment for forgery, the word "shipped "being spelled shiped" in the original instrument: People v. Cummings, 58 Id. 88.

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SEC. 1022. Whenever the defendant is acquitted on the merits, he is acquitted of the same offense, notwithstanding any defect in form or substance in the indictment or information on which the trial was had. [Amendment, approved April 9, 1880; Amendments 1880, 19 (Ban ed. 165); took effect immediately.] 1023. Conviction or acquittal on indictment or information for a higher offense. SEC. 1023. When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment or information, the conviction, acquittal, or jeopardy is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense

necessarily included therein, of which he might have been convicted under that indictment or information. [Amendment, approved April 26, 1880; Amendments 1880, 44 (Ban. ed. 522); took effect from passage.]

Jeopardy: Sec. 687, note.

1024. Defendant refusing to answer, plea of not guilty to be entered.

SEC. 1024. If the defendant refuses to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered. [Amendment, approved April 9, 1880; Amendments 1880, 19 (Ban. ed. 165); took effect immediately.1

Refusal to plead after demurrer overruled: Sec. 1011, note,
Plea of not guilty: Sec. 1016, note.

1025. Previous convictions.

Section 1025, relating to previous convictions, was repealed by act of April 9, 1880; Amendments 1880, 19 (Ban. ed. 165); took effect immediately.

The repealed section was as follows: "Sec. 1025. When a defendant, who is charged in the indictment with having suffered a previous conviction, pleads either guilty or not guilty of the offense for which he is indicted, he must be asked whether he has suffered such previous conviction. If he answers that he has, his answer shall be entered by the clerk in the minutes of the court, and shall, unless withdrawn by consent of the court, be conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings. If he answer that he has not, his answer shall be entered by the clerk in the minutes of the court, and the question whether or not he has

suffered such previous conviction shall be tried by the jury which tries the issue upon the plea of not guilty,' or in case of a plea of 'guilty,' by a jury impaneled for that purpose. The refusal of the defendant to answer is equiva lent to a denial that he has suffered such previous conviction. In case the defendant pleads 'not guilty,' and answers that he has suffered the previous conviction, the charge of the previous conviction shall not be read to the jury, nor alluded to on the trial. [New section, approved March 30, 1874; Amendments 1873-4, 439; took effect July 1, 1874.]"

See discussion of this section, and of the effect of its repeal, in People v. Johnson, 55 Cal. 571, 572; People v. Lewis, 64 Id. 401; People v. Brooks, 3 West Coast Rep. 53; People v. King, 64 Cal. 338; see also sec. 969.

CHAPTER V.

TRANSMISSION OF CERTAIN INDICTMENTS FROM THE COUNTY COURT TO THE DISTRICT COURT OR MUNICIPAL CRIMINAL COURT OF SAN FRANCISCO. 1028. Transmitting indictments.

Section 1028, relating to the transmission of certain indictments from the county to the district court was repealed by act of March 12,

1880; Amendments 1880, 6 (Ban. ed. 27);
effect from passage.

took

1029. Indictments against a judge of the superior court, certificate of facts to be transmitted to governor.

SEC. 1029. When an indictment is found or an information filed in a superior court against a judge thereof, a certificate of that fact must be transmitted by the clerk to the governor, who shall thereupon designate and direct a judge of the superior court of another county to preside at the trial of such indictment or information, and hear and determine all pleas and motions affecting the defendant thereunder before and after judgment. [Amendment, approved March 12, 1880; Amendments 1880, 6 (Ban. ed. 27); took effect immediately.] 1030. Transmitting indictments to municipal criminal court of San Francisco. Section 1030, relating to the transmission of March 12, 1880; Amendments 1880, 6 (Ban, ed. certain indictments to the municipal criminal 27); took effect from passage. court of San Francisco, was repealed by act of

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CHAPTER VI.

REMOVAL OF THE ACTION BEFORE TRIAL.

1033. When action may be removed.

SEC. 1033. A criminal action may be removed from the court in which it is pending, on the application of the defendant, on the ground that a fair and impartial trial cannot be had in the county where the action is pending. [Amendment, approved April 9, 1880; Amendments 1880, 19 (Ban. ed. 165); took effect immediately.]

Change of venue in criminal cases.-Section 397 of the Code of Civil Procedure, providing for the change of the place of trial in civil actions, has no application to criminal cases. The only provisions of law providing for a removal of such cases from one county to another for trial are found in the Penal Code, sections 1033-1038, inclusive. The only ground upon which a removal may be granted is that provided for in section 1033; viz., "that a fair and impartial trial cannot be had in the county where the action is pending." By this is meant that a fair and impartial jury cannot be obtained in that county: People v. McGarvey, 56 Cal. 327. A judge who is disqualified from trying a criminal case, on account of having been attorney for defendant, cannot change the venue of such case on that ground: Id. Neither does bias or prejudice on the part of the judge who is to try the case furnish any grounds to authorize a change: People v. Williams, 24 Id.

31; People v. Shuler, 28 Id. 490; People v. Mahoney, 18 Id. 185. The allowance or refusal of a motion to change the venue in a criminal case is largely discretionary in the trial court: People v. Fisher, 6 Id. 154; People v. Mahoney, 18 Id. 180; People v. Congleton, 44 Id. 92; People v. Purdue, 49 Id. 425; People v. Yoakum, 53 Id. 566. Such motion is addressed to a sound judicial discretion, to be disposed of in furtherance of substantial justice, and an order refusing a change will not be reviewed on appeal, except in cases of gross abuse of discretion: People v. Fisher, 6 Id. 154; People v. Congleton, 44 Id. 92. The decision of the trial court denying a change of venue must be warranted by the facts disclosed by the record, if not, it will be reversed: People v. Yoakum, 53 Id. 566. A motion for a change of venue after the jury has been impaneled comes too late: People v. Cotta, 49 Id. 166.

1034. Application for removal, how made.

SEC. 1034. The application must be made in open court, and in writing, verified by the affidavit of the defendant, a copy of which must be served on the district attorney at least one day before the application is made. Whenever the affidavit shows that the defendant cannot safely appear in person to make the application, because the popular excitement against him is so great as to endanger his personal safety, and such statement is sustained by other testimony, the application may be made by counsel, and heard and determined in the absence of the defendant, though he is indicted for felony, and has not at the time of such application been arrested, or given bail, or been arraigned, or pleaded or demurred to the indictment.

Affidavits upon motion to change, sufficiency of.-Affidavits upon a motion for a change of venue must state facts and circumstances from which the court may deduce the conclusion that a fair and impartial trial cannot be had. Such conclusion is to be drawn by the court, and not by the defendant and his witnesses, and the court must be satisfied from the facts and circumstances positively sworn to in the affidavits, and not from the general conclusion to which the defendant may swear, or which his witnesses may depose they verily believe to be true: People v. Fisher, 6 Cal. 154; People v. Yoakum, 53 Id. 566. An affidavit that a jury cannot be selected from a certain portion of the county is insufficient: People v. Baker, 1 Id. 403. Nor is the affidavit of defendant alone sufficient: People v. Mahoney, 18 Id. 180; People v. Graham, 21 Id. 261. A statement generally that the people of the

county are prejudiced against the defendant will not be sufficient: People v. Shuler, 28 Id. 490. Nor is it sufficient that thirty or forty persons contributed to pay counsel to assist the district attorney, to show such general prejudice as to require a change of venue: People v. Graham, 21 Îd. 261; People v. Lee, 5 Id. 353. Mere belief or opinion of the persons who make the affidavits in support of such a motion that the defendant cannot have a fair trial owing to the popular prejudice against him is not sufficient: People v. Congleton, 44 Id. 95; see People v. Perdue, 49 Id. 425. The considera. tion of such a motion may be postponed until an attempt has been made to impanel a jury: People v. Plummer, 9 Id. 298. The legislature may consent to a change of venue on behalf of the state, when applied for by the defendant: People ex rel. Smith v. Twelfth District Judge, 17 Id. 547.

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