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1138. Jury, after retiring, may return for information.

SEC. 1138. After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the district attorney, and the defendant or his counsel, or after they have been called. [Amendment, approved March 30, 1874; Amendments 1873-4, 445; took effect July 1, 1874.] Jury must return for information. It is the duty of the jury, if there is any disagreement between them as to the testimony, or if they desire information upon any point of law arising in the cause, to return into court for the required information: People v. Hersey, 53 Cal. 574. If they desire to be further instructed as to the law of the case, the court must instruct them in writing, or, if orally, in the presence of the phonographic reporter. To orally in

struct them in the latter's absence is error per se: Id. Neither should such instructions be given in the absence of the defendant's attor ney, although the defendant himself is present, without proof of notice to him of the return of the jury: People v. Trim, 37 Id. 274. The latter decision was made under section 408 of the criminal practice act, which provided that notice should be given to "defendant and his counsel:" Hittell's Gen. Laws, 1995.

1139. If juror after retirement becomes sick, etc., jury to be discharged.

SEC. 1139. If, after the retirement of the jury, one of them be taken so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept for deliberation, the jury may be discharged.

Discharge of jury not an acquittal. The discharge of the jury for such causes as are specified in this section does not amount to an acquittal of defendant: Ex parte McLaughlin, 41 Cal. 212; People v. Cage, 48 Id. 323; see sec. 687, note. The power conferred upon the court, however, to discharge a jury without the defendant's consent, is not an absolute, uncon

trolled discretionary power. It must be exer cised in accordance with established legal rules, and a sound legal discretion in the application of such rules to the facts and circumstances of each particular case, and in this state is subject to review by an appellate court: Ex parte McLaughlin, 41 Cal. 219.

1140. Not to be discharged for any other cause, unless there is no reasonable probability that they can agree.

SEC. 1140. Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.

Acquittal: Sec. 687, note.
Jeopardy: Sec. 687, note.

Consent of both parties.-The jury in a criminal case may be discharged by the consent of both parties entered in the minutes, al

though they have not agreed upon a verdict: People v. Webb, 38 Cal. 467. Such discharge does not amount to an acquittal of the defendaut: Ex parte McLaughlin, 41 Id. 212; People v. Cage, 48 Id. 323.

1141. When jury discharged or prevented from giving a verdict, cause to be again tried.

SEC. 1141. In all cases where a jury is discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged during the progress or the trial, or after the cause is submitted to them, the cause may be again tried. [Amendment, approved April 9, 1880; Amendments 1880, 24 (Ban. ed. 170); took effect immediately.]

Jeopardy: Sec. 687, and note.

1142. Court may adjourn during absence of jury, but deemed open for all purposes connected with cause.

SEC. 1142. While the jury are absent, the court may adjourn from time to time, as to other business, but it must nevertheless be open for every purpose

connected with the cause submitted to the jury until a verdict is rendered or the jury discharged.

Holiday. A jury may be discharged on Washington's birthday for not agreeing: People v. Soto, 4 West Coast Rep. 46.

1143. Final adjournment discharging jury. Section 1143, relating to the discharge of the jury by the final adjournment of the court, was repealed by act of March 12, 1880; Amend

1147. Return of jury.

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

CHAPTER IV.

THE VERDICT.

SEC. 1147. When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried at the same, or another term.

Office of trial jury.-In Fitzpatrick v. Himmelman, 48 Cal. 588, it was said that it is the office of a trial jury, by their verdict, whether general or special, to find the facts in issue; that with the legal effect of those facts, as resulting in a judgment in favor of the one party or the other, they have no concern whatever. A juror may at the last moment dissent from the verdict as presented, but his dissent should proceed upon the question of fact determined by the verdict. He is not at liberty to dissent

1148. Appearance of defendant.

merely because he mistook the legal effect of his verdict, or ascertains from a remark by the court that the judgment rendered on the verdict will be other than he had anticipated.

Failure to call names of jury.-Where the verdict is received without calling the names of the jury, the omission to call the names is an irregularity which does not prejudice the defendant, if in fact the jury were all present, and declared the verdict: People v. Rodundo, 44 Cal. 541.

SEC. 1148. If charged with a felony, the defendant must, before the verdict is received, appear in person. If for a misdemeanor, the verdict may be rendered in his absence. [Amendment, approved April 9, 1880; Amendments 1880, 24 (Ban. ed. 170); took effect immediately.]

Verdict rendered in defendant's absence. Where defendant, who was indicted for a felony, was absent when the jury rendered a verdict of guilty, but returned immediately thereafter, and before the jury was discharged knew what the verdict was, and had an opportunity to demand a polling of the jury, the verdict was held not invalidated thereby: People v. Miller, 33 Cal. 99. But where the verdict is received and recorded, and the jury discharged while defendant is not personally present, a new trial will be granted: People v. Beauchamp, 49 Id. 41. The defendant is entitled to be present at the rendition of the verdict, and is also entitled to be present when, if the jury cannot agree, the court discharges them. In the lat1149. Manner af taking verdict.

ter case, if the defendant is not present, it is, in law, an acquittal: State, v. Wilson, 50 Ind. 487. See generally, upon the right of the defendant to be present when the verdict is rendered, Beaumont v. State, 1 Tex. App. 533; State v. Bray, 67 N. C. 283; State v. Epps, 76 Id. 55; State v. Spores, 4 Or. 198; Finch v. State, 53 Miss. 363.

If the defendant runs away pending the trial the jury may be discharged, and the prisoner will not be deemed to have been in jeopardythe trial, for grand larceny, requiring his presence: People v. Higgins, 59 Cal. 357. Judgment in defendant's presence: See sec. 1193.

SEC. 1149. When the jury appear they must be asked by the court, or clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.

Manner of taking verdict.-In People v. Nichols, 62 Cal. 518, the verdict was handed to the clerk, and recorded before the jury were asked if it was their verdict. This, although a

1150. Verdict may be general or special.

palpable irregularity, was held not to have prejudiced the defendant, and the supreme court would not reverse.

SEC. 1150. The jury may render a general verdict, or, when they are in doubt as to the legal effect of the facts proved, they may, except upon a trial for libel,

find a special verdict. [Amendment, approved April 9, 1880; Amendments 1880, 24 (Ban. ed. 171); took effect immediately.] General verdict: Sec. 1151, note. Special verdict.-It is improper for the court to direct the jury to render a special verdict, but the court should, upon request of either party, direct the jury that they have the discretion to render either a general or special verdict: People v. Antonio, 27 Cal. 404.

Verdict of guilty.-A general verdict of guilty means guilty of all that the indictment sufficiently alleges: People v. Magellones, 15 Cal. 26; State v. Jones, 69 N. C. 364; State v. Nowlan, 64 Me. 531; Lovell v. State, 45 Ind. 550. If informal, the court will nevertheless give effect to it, whether for or against the defendant: People v. McCarty, 48 Cal. 557; Arnold v. State, 51 Ga. 144; Bloomhuff v. State, 8 Blackf. 205. A verdict of guilty upon one count, and silent upon others, is an acquittal upon such others: State v. Watson, 63 Me. 128; Guenther v. People, 24 N. Y. 100. If a crime is divided into degrees, the jury should find the degree of the crime of which the defendant is guilty; a general verdict in such a case is insufficient: People v. Coch, 53 Cal. 627; People v. Ah Gow, Id. 628. Surplusage in a verdict does not vitiate it, but it may be rejected: People v. Ah Kim, 34 Id. 189; Bittick v. State, 40 Tex. 117; McEntee v. State, 24 Wis. 43; but if a verdict is uncertain, no valid judgment can be rendered upon it: State v. Coon, 18 Minn. 518. As where it fails to show which of two defendants is meant to be convicted: Favor v. State, 54 Ga. 249; or on which of two counts a conviction is: Campbell v. Regina, 1 Cox C. C. 269; Day v. People, 76 Ill. 380; but a verdict which finds "the defendances' guilty as charged in the 'inditsement,' "" is not uncertain: People v. Sepulreda, 7 Pac. C. L. J. 688; but where there are two defendants, and the verdict reads, "We find the defendant guilty as charged in the indictment," it is fatally irregular: People v. Sepulveda, 59 Cal. 342, in bank. A verdict may

1151. General verdict.

be amended so as to make it meet the requirements of the law, at any time while the jury is before it and under its control: People v. Jenkins, 56 Id. 4. "Guilty as charged" is a good verdict on a prosecution for grand larceny: People v. Whiteley, 64 Id. 211; People v. De Cleer, 60 Id. 382; People v. Gilbert, Id. 180. Informality in the verdict does not vitiate: People v. Gilbert, 57 Id. 96.

Acquittal-A verdict finding a person guilty who is not named in the indictment is an acquittal of the defendant: People v. Ah Ye, 31 Cal. 451; but where the defendant was indicted by one name, and, upon arraignment, disclosed another as his true name, under which the prosecution was conducted, a verdict of guilty, in which the original title of the cause was prefixed, is sufficient: People v. Ah Kim, 34 Id. 189. See, as to verdict of acquittal being an estoppel, People v. Frank, 28 Id. 507.

Sealed verdict.-An order of the court, authorizing the sheriff to receive from the jury a sealed verdict if they should agree during the night, and, upon its receipt, to allow the jury to separate until the session of the court upon the following morning, is not erroneous, if consented to by the defendant: People v. Kelly, 46 Cal. 355; see Commonwealth v. Durfee, 100 Mass. 146; Stewart v. People, 23 Mich. 63.

Instruction as to form of verdict.-The court may in any case instruct the jury as to form of their verdict; and if it appears from their verdict, as first returned, that they do not know the proper form, it is the duty of the court to instruct them in that regard, and direct them to return the verdict in such form that the judgment of the law may thereupon be pronounced: People v. Ah Gow, 53 Cal. 628. A court may not direct a jury to find a certain verdict, either special or general, but may, on request, instruct them as to their right to find either: People v. Antonio, 27 Id. 404.

SEC. 1151. A general verdict upon a plea of not guilty is either "guilty" or "not guilty," which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or acquittal of the same offense, it is either "for the people" or "for the defendant." When the defendant is acquitted on the ground that he was insane at the time of the commission of the act charged, the verdict must be "not guilty by reason of insanity." When the defendant is acquitted on the ground of variance between the indictment and the proof, the verdict must be "not guilty by reason of variance between indictment and proof." [Amendment, approved March 30, 1874; Amendments 1873-4, 446; took effect July 1, 1874.]

General verdict.-Where a general verdict of guilty is rendered, it is a conviction on every material allegation in the indictment; but if the jury intend a conviction of a lesser offense than that charged, but necessarily included in it, they must so specify in the verdict: People v. March, 6 Cal. 543. Where, however, the indictment charged the defendant with an assault with an intent to commit murder, and the verdict found him guilty of the "indictment as charged to him," it was held that these words conveyed no meaning: People v. Ah Gow, 53 PEN. CODE-17

257

Id. 627. So if the crime is divided into degrees, the jury should find the degree: People v. Coch, Id. 627. A verdict which reads "guilty as charged in the indictment" is conclusive as to the venue having been proved, when the indictment charges the venue, and the evidence tends to show the offense to have been committed within the jurisdiction of the trial court: People v. Magallones, 15 Id. 426. Where the verdict found one guilty who was not named in the indictment, and was silent as to the one named, it was held to be a

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finding that the one named in the indictment was not guilty: People v. Ah Ye, 31 Id. 451. But see People v. Ah Kim, 34 Id. 189. A verdict, we, the jury, find that the defendant is guilty of murder in the second degree," is good, both in form and substance: People v. Buckley, 49 Id. 241. A verdict, "we, the jury in the case of -, do find a verdict of manslaughter," is sufficient in substance: People v. Per. due, Id. 425. "We, the jury, find the defendant guilty as inflicted, to the sum of ninety dollars," is sufficient in substance where the indictment is for embezzlement: People v. Gilbert, 57 Id. 96. If there be a plea of not guilty, and also one of former conviction or acquittal, defendant is entitled to a verdict on each plea, and until there is such a verdict, there can be no judgment of conviction: People v. Kinsey, 51 Cal. 278; People v. Helbing, 56 Íd. 597, and see sec. 1158, post. See also People v. Vanard, 6 Id. 562; People v. English, 30 Íd. 214; People v. Frank, 28 Id. 507. Defects in an indictment are not cured by a general verdict of guilty: People v. Wallace, 9 Id. 30.

Specification of degree.-When the offense charged is distinguished into degrees, and the jury, under instructions from the court, simply find the defendant "guilty as charged in the indictment," a new trial will be granted: People v. Coch, 53 Cal. 627; People v. Campbell, 40 Id. 137. See People v. Fine, 53 Id. 263; and

1152. Special verdict.

People v. Gilbert, 60 Id. 108, infra. And it seems this section applies where the indictment charges the crime generally without specifying the degree: People v. Barnhart, 59 Id. 381. But if the indictment charges only the lowest degree of the offense, as defined by the code, a general verdict will be sufficient, though it fail to specify the degree: People v. Fisher, 51 Id. 319. See also People v. Jefferson, 52 Id. 452. If when the jury return their verdict it does not specify the degree, the court should order them to retire, and return a specific finding of the degree: People v. Marquis, 15 Id. 38; People v. Bonney, 19 Id. 426. On an indictment charging the defendant with murder in the second degree, the jury may nevertheless find him guilty of murder in the first: People v. Nichol, 34 Id. 211. So if the jury find the defendant guilty of murder in the first degree, and do not declare in their verdict that the punishment shall be imprisonment for life, it is the duty of the court to pronounce punishment of death: People v. Welch, 49 Id. 174.

The above section does not apply to robbery, it not being divided into degrees: People v. Gilbert, 60 Cal. 108.

The court must not instruct the jury what degree to find; that is for the jury: People v. Hunt, 59 Cal. 430, citing People v. Gibson, 17 Id. 283; People v. Woody, 45 Id. 289.

SEC. 1152. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact as established by the evidence, and not the evidence to prove them, and these conclusions of fact must be so presented as that nothing remains to the court but to draw conclusions of law upon them.

Special verdict: See note to sec. 1150.

1153. Special verdict, how rendered.

SEO. 1153. The special verdict must be reduced to writing by the jury, or in their presence entered upon the minutes of the court, read to the jury, and agreed to by them, before they are discharged.

1154. Form of special verdict.

SEC. 1154. The special verdict need not be in any particular form, but is sufficient if it present intelligibly the facts found by the jury.

1155. Judgment on special verdict.

SEC. 1155. The court must give judgment upon the special verdict as follows:

1. If the plea is not guilty, and the facts prove the defendant guilty of the offense charged in the indictment, or of any other offense of which he could be convicted under that indictment, judgment must be given accordingly. But if otherwise, judgment of acquittal must be given;

2. If the plea is a former conviction or acquittal of the same offense, the court must give judgment of acquittal or conviction, as the facts prove or fail to prove the former conviction or acquittal.

1156. When special verdict defective, new trial to be ordered.

SEC. 1156. If the jury do not, in a special verdict, pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if

they find the evidence of facts merely, and not the conclusions of fact, from the evidence, as established to their satisfaction, the court must order a new trial.

1157. Jury to find degree of crime.

SEO. 1157. Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.

1158. Jury may find upon charge of previous conviction.

SEC. 1158. Whenever the fact of a previous conviction of another offense is charged in an indictment or information, the jury, if they find a verdict of guilty of the offense with which he is charged, must also, unless the answer of the defendant admits the charge, find whether or not he has suffered such previous conviction. The verdict of the jury upon a charge of previous conviction may be: "We find the charge of previous conviction true," or, "We find the charge of previous conviction not true," as they find that the defendant has or has not suffered such conviction. [Amendment, approved April 9, 1880; Amendments 1880, 24 (Ban. ed. 171); took effect immediately.]

Previous conviction.-Where there is a plea of not guilty, and one of former conviction or acquittal, defendant is entitled to a verdict on each plea, and until there is such a verdict, there can be no judgment of conviction: People v. Kinsey, 51 Cal. 278; People v. Helbing, 59 Id. 567; People v. Fuqua, 61 Id. 377; see People v. Delany, 49 Id. 394. But otherwise where the prior conviction is confessed: People v. Carlton, 57 Id. 559; People v.

Johnson, Id. 571. In People v. Lewis, 64 Id. 401, 403, the court say: "We will add here that the answer of defendant, in section 1158 of the Penal Code, is the plea which he tenders on arraignment: People v. King, Id. 338."

Alleging prior conviction.-Whether this section makes proper an averment of a former conviction in the information, see People v. Boyle, 64 Cal. 153.

1159. Jury may convict of lesser offense, or of attempt.

SEC. 1159. The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense. [Amendment, approved April 9, 1880; Amendments 1880, 24 (Ban. ed. 171); took effect immediately.]

Greater contains the less.-The jury may find a defendant guilty of any offense which is necessarily included in the charge in the indictment: People v. Davidson, 5 Cal. 133; Ex parte Ah Cha, 40 Id. 426; People v. Congleton, 44 Id. 94; People v. Nelson, 56 Id. 77, 80; People v. Holland, 59 Id. 364. As to what offenses a defendant may be convicted of, upon an indictment for an assault with intent to

murder, see note to sec. 217. Where the defendant is convicted of an offense of a lesser grade than that for which he was indicted, and the lesser offense is included in the greater, the verdict is followed by the same judgment as though the defendant had been indicted for the offense of which he was convicted: People v. English, 30 Id. 215.

1160. Verdict as to some defendants, and another trial as to others.

SEC. 1160. On an indictment or information against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the others may be tried by another jury. [Amendment, approved April 9, 1880; Amendments 1880, 24 (Ban. ed. 171); took effect immediately.]

1161. In what cases court may direct a reconsideration of the verdict.

SEC. 1161. When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the court cannot require the jury to reconsider it. If the jury render a verdict which is neither general nor special, the court may direct them to reconsider it, and it cannot be recorded until it is rendered in

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