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tion of the appeal or of the proceedings thereon, and all orders necessary to carry the judgment into effect must be made by the court to which the certificate is remitted.

1. Jurisdiction, when Ceases.-Sec. 1264, n. People v. Bonilla, 38 Cal. 699; People v. Dick, 39 Id. 102; Ex parte Jones, 41 Id. 210.

2. Power of Appellate Court after Remittitur.-The jurisdiction of the appellate court is divested when the remittitur or mandate is sent to and filed in the court below, and such appellate court has no further control over its judgment, unless there has been fraud, mistake, or inadvertence in the proceedings. "The supreme court has no appellate jurisdiction over its own judgments; it can not review or modify them after the case has once passed, by the issuance of a remittitur, from its control. The court

can not recall the case and reverse its decision after the remittitur is issued. It has determined the principles of law which shall govern, and having thus determined, its jurisdiction in that respect is gone. And if the new trial is had in accordance with its decision, no error can be alleged in the action of the court below." Leese v. Clark, 20 Cal. 417, per Field, J. Such is the well-established rule. Phelan v. San Francisco, 20 Id. 39; Blanc v. Bowman, 22 Id. 23; People v. Sprague, 5 Pac. C. L. J. 739; Noman v. Bradley, 12 Wall. 129; Legg v. Overtagh, 4 Wend. 188; 21 Am. Dec. 115, 118, n. The jurisdiction of the appellate court does not cease, however, until the remittitur or mandate is filed in the court below. Judson v. Gray, 17 How. Pr. 289; Grogan v. Ruckle, 1 Cal. 193; Mateer v. Brown, 1 Id. 231. Thus, where the remittitur was filed in the lower court after an order had been made granting a rehearing, the jurisdiction to reconsider the cause was held not to be taken away. Grogan v. Ruckle, 1 Id. 193. So where any irregularity, error, or inadvertence in granting the order upon which the remittitur is founded, intervenes, the appellate court does not lose jurisdiction, and may recall the remittitur after it has been sent down and filed. Vance v. Peña, 36 Id. 328; Hanson v. McCue, 43 Id. 178; Bernal v. Wade, 46 Id. 640.

TITLE X.

MISCELLANEOUS PROCEEDINGS.

CHAPTER I. BAIL, §§1268-1317.

II. WHO MAY BE WITNESSES IN CRIMINAL ACTIONS, §§ 1321-1323.

III. COMPELLING THE ATTENDANCE OF WITNESSES, §§1326

1333.

IV. EXAMINATION OF WITNESSES CONDITIONALLY, §§1335

1346.

V. EXAMINATION OF WITNESSES ON COMMISSION, §§1349

1362.

CHAPTER VI. INQUIRY INTO THE INSANITY OF THE DEFENDANT BEFORE TRIAL OR AFTER CONVICTION, §§1367-1373.

VII. COMPROMISING CERTAIN PUBLIC OFFENSES BY LEAVE

OF THE COURT, §§1377-1379.

VIII. DISMISSAL OF THE ACTION BEFORE OR AFTER INDICT-
MENT FOR WANT OF PROSECUTION OR OTHERWISE,

§§1382-1387.

IX. PROCEEDINGS AGAINST CORPORATIONS, §§1390–1397.
X. ENTITLING AFFIDAVITS, §1401.

XI. ERRORS AND MISTAKES IN PLEADINGS AND OTHER PRO

CEEDINGS, $1404.

XII. DISPOSAL OF PROPERTY STOLEN OR EMBEZZLED, §§1407

1413.

XIII. REPRIEVES, COMMUTATIONS, AND PARDONS, §§1417

1423.

CHAPTER I.
BAIL.

ARTICLE I. IN WHAT CASES THE DEFENDANT MAY BE ADMITTED TO BAIL. II. BAIL UPON BEING HELD TO ANSWER BEFORE INDICTMENT.

III. BAIL UPON AN INDICTMENT BEFORE CONVICTION.

IV. BAIL ON APPEAL.

V. DEPOSIT INSTEAD OF BAIL.

VI. SURRENDER OF THE DEFENDANT.

VII. FORFEITURE OF THE UNDERTAKING OF BAIL OR OF THE DEPOSIT
OF MONEY.

VIII. RECOMMITMENT OF THE DEFENDANT AFTER HAVING GIVEN BAIL
OR DEPOSITED MONEY INSTEAD OF BAIL.

ARTICLE I.

IN WHAT CASES THE DEFENDANT MAY BE ADMITTED TO BAIL.

SECTION 1268. Admission to bail defined.

1269. Taking of bail defined.

1270. Offense not bailable.

1271. In what cases defendant may be admitted to bail before

conviction.

1272. In what cases he may be admitted to bail after conviction and upon appeal.

1273. Nature of bail.

1274. When bail is matter of discretion, notice of application must

be given to district attorney.

1268. Admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon bail.

1. Bail.—The giving of bail is the procuring by defendant under arrest of sureties who undertake that he will appear when called. On the sureties

executing a formal engagement to this effect the defendant is, in theory of law, delivered to the custody of the sureties; but practically is allowed to go at large. Should the sureties, however, become distrustful that he will keep his engagement they may surrender him to judicial custody. They have the authority of jailers to take their principal into their actual custody, and to surrender him to prison. Vide Abbott's Law Dict., tit. Bail, sec. 1278, n., 1300, n., 1301, n.

2. Bail, Where Taken.-A prisoner arrested for felony must, in order to procure bail, be taken before the magistrate who issued the warrant, or before some other magistrate in the same county. Ex parte Hung Sin, 54 Cal. 102.

3. Duty of Court as to Bail.-The nature of proceedings in bail, and the purpose at which they aim, require that the authority and discretion of the court having jurisdiction of the offense, to admit to bail, to increase or reduce the amount of bail, etc., should be exercised whenever substantial justice would thereby be promoted. Ex parte Ryan, 44 Cal. 555. In fixing the amount of bail, the sole purpose which should guide the court or judge, should be to cause the appearance of the accused to answer the charge against him. Ex parte Duncan, 54 Id. 75.

1269. The taking of bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant, according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum.

1. Amount of Bail.-In fixing the amount of bail, the sole purpose which should guide the court should be to cause the appearance of the accused to answer the charge against him. Ex parte Duncan, 54 Cal. 75.

2. Excessive Bail.—Excessive bail shall not be required. Cal. Const., art. I, sec. 6, U. S. Const., Amendment 8. In order to constitute it "excessive" it must be, per se, unreasonably great and clearly disproportionate to the offense involved, or the peculiar circumstances appearing must show it to be so in the particular case. Ex parte Ryan, 44 Cal. 558. The sum of one hundred and twelve thousand dollars is not excessive bail for ten distinct felonies, such being the sum alleged to have been received by the defendant by reason of the felonies. Ex parte Duncan, 53 Id. 410. Where defendant is held to answer a charge of assault with intent to commit murder, the sum of fifteen thousand dollars is not excessive bail. Ex parte Ryan, 44 Id. 555. See Ex parte McLaughlin, 41 Id. 212, 220, where the defendant in a capital case was admitted to bail by the supreme court in the sum of ten thousand dollars.

1270. A defendant charged with an offense punishable with death can not be admitted to bail, when the proof of his guilt is evident or the presumption thereof great. The finding of an indictment does not add to the strength of the proof or the presumptions to be drawn therefrom.

1. Constitutional Provision. -All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Art. I, sec. 6.

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2. Offenses not Bailable. —Admission to bail in capital cases when the proof is evident or the presumption great, may be made a matter of discretion, or may be forbidden by legislation. People v. Tinder, 19 Cal. 539. In all other cases admission to bail is a right of the accused, which no court can properly refuse. Id. A person charged with murder, committed by the administration of drugs and mechanical means with intent to produce an abortion, from the effects of which death resulted, is entitled to be admitted to bail. Ex parte Wolff, 6 Pac. C. L. J. 725. See also People v. McLaughlin, 41 Cal. 212, for a capital case, where defendant was held entitled to be admitted to bail, it appearing that on the first trial the jury were unable to agree, and had been discharged without the defendant's consent.

1271. If the charge is for any other offense, he may be admitted to bail before conviction, as a matter of right.

1. Bail as Matter of Right. In all other than capital cases, and in all capital cases where the guilt is not evident or the presumption great, defendant is entitled to bail as a matter of right, which no court can properly refuse. People v. Tinder, 19 Cal. 539. The constitution, in declaring bail to be a matter of right, contemplates only those cases where the party has not been already convicted. Ex parte Voll, 41 Id. 29. Sec. 1270, n. 1, 2. Bail should be accepted in all cases if it will secure the presence of the defendant at the trial and sentence. The danger of escape increases in proportion to the severity of the impending punishment, and the danger of conviction, and in determining the question of accepting bail, and the amount thereof, these two elements should be taken into consideration. 1 Bish. Crim. Proc., sec. 255; People v. Cunningham, 3 Park. C. C. 520; People v. Van Horne, 8 Barb. 158.

2. Bail, Application for, What Look into.-On applications for admission to bail, the law presumes the defendant guilty. Ex parte Ryan, 44 Cal. 555; Ex parte Duncan, 54 Id. 75. In the determination, however, of this question, the principal consideration being the question of probable guilt, the court or judge will look into the depositions taken before the coroner, and also those taken before the committing magistrate. 1 Bish. Crim. Proc., sec. 257; Rex v. Pepper, Comb. 298; Rex v. Horner, 1 Leach C. C. (4th ed.), 270; State v. Dew, Tayl. (N. C.) 142. But see People v. Dixon, 4 Park. Crim. R. 651. So the testimony of the witnesses before the grand jury may be consid ered on an application for bail. Ex parte Bramer, 37 Tex. 1; Street v. State, 43 Miss. 1. The mere fact that a grand jury has found an indictment for murder does not preclude the court or judge from an inquiry into the facts of the case to ascertain whether the offense may not be of such grade as to entitle the prisoner to bail. Lynch v. People, 38 Ill. 494; People v. Beigler, 3 Park. Crim. R. 316.

1272. After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail: 1. As a matter of right, when the appeal is from a judgment imposing a fine only;

2. As a matter of discretion in all other cases.

1. Bail after Conviction of Felony.-Upon defendant's conviction of a felony, not punishable capitally, his admission to bail is no longer a matter of

right, but rests in the discretion of the court. Ex parte Voll, 41. Cal. 29; Ex parte Hoge, 48 Id. 3; People v. Perdue, 48 Id. 552. In general, bail should not be allowed, pending appeal, except where circumstances of an extraordinary character have intervened. Ex parte Marks, 49 Id. 680; Ex parte Smallman, 54 Id. 35; Ex parte Marshall, 7 Pac. C. L. J. 724.

2. Bail, Where Judgment Imposes Fine.-Where the judgment in the case imposes a fine only, the defendant who has taken an appeal is entitled to be admitted to bail as a matter of right. Ex parte Clarke, 6 Pac. C. L. J. 1014.

1273. If the offense is bailable, the defendant may be admitted to bail before conviction:

1. For his appearance before the magistrate, on the examination of the charge, before being held to answer;

2. To appear at the court to which the magistrate is required to return the depositions and statements, upon the defendant being held to answer after examination;

3. After indictment, either before the bench warrant is issued for his arrest, or upon any order of the court committing him, or enlarging the amount of bail, or upon his being surrendered by his bail to answer the indictment in the court in which it is found, or to which it may be transferred for trial.

And after conviction, and upon an appeal:

1. If the appeal is from a judgment imposing a fine only, on the undertaking of bail that he will pay the same, or such part of it as the appellate court may direct, if the judgment is affirmed or modified, or the appeal is dismissed;

2. If judgment of imprisonment has been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or that in case the judgment be reversed, and that the cause be remanded for a new trial, that he will appear in the court to which said cause may be remanded, and submit himself to the orders and process thereof. [Amendment, approved February 15, 1876; in effect sixtieth day after passage.

1. Bail before Conviction.-Sec. 1271, n.

2. Bail after Conviction of Felony.-Sec. 1272, n. 1.

3. Bail where Judgment Imposes Fine Only.-Sec. 1272, n. 2.

4. Presumption of Guilt.—Upon an application to reduce the bail of defendant after indictment, guilt will be presumed. Ex parte Ryan, 44 Cal. 555; Ex parte Duncan, 54 Id. 75.

1274. When the admission to bail is a matter of discretion, the court or officer to whom the application is made must require reasonable notice thereof to be given to the district attorney of the county.

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