assistant adult probation officer and the deputy adult probation officers of such county or city and county. [Juvenile court law, etc., not affected.] Nothing contained in this subdivision shall apply to the offenses defined by section twenty-one of said juvenile court law and by section two hundred seventy of the Penal Code. 8. [Transfer of case.] Whenever any person is released upon probation under the provisions of this act, the case may be transferred to any court of the same rank in any other county, or city and county, of this state in which such person resides, or to which such person may remove, and such court shall thereupon commit such person to the care and custody of the probation officer of the county, or city and county, to which such person has been transferred; such court shall thereafter have entire jurisdiction over such case, with like power to make transfer whenever to such court such transfer may seem proper. 9. [Report on person's antecedents.] At the time of the plea or verdict of guilty of any crime of any person over eighteen years of age, the probation officer of the county of the jurisdiction of said crime shall, when so directed by the court, inquire into the antecedents, character, history, family environment, and offense of such person, and must report the same to the court, and file his report in writing in the records of said court. His report shall contain his recommendation for or against the release of such person on probation. If any such person shall be released on probation and committed to the care of the probation officer, such officer shall keep a complete and accurate record in suitable books or other form in writing, of the history of the case in court, and of the name of the probation officer, and his acts in connection with said case; also the age, sex, nativity, residence, education, habits of temperance, whether married or single, and the conduct, employment, and occupation, and parents' occupation, and condition of such person so committed to his care during the term of such probation and the result of such probation. Such record of such probation officer shall be and constitute a part of the records of the court, and shall at all times be open to the inspection of the court, or of any person appointed by the court for that purpose, as well as of all magistrates, and the chief of police, or other head of the police, unless otherwise ordered by the court. Said books of record shall be furnished for the use of said probation officer of said county, and shall be paid for out of the county treasury. 10. [Report.] Every probation officer, within fifteen days after the thirtieth day of June, and within fifteen days after the thirty-first day of December, of each year, shall make in writing and file as a public document with the county clerk a report to the superior court of the county or city and county in which such probation officer is appointed to serve, and shall furnish a copy of such report to each judge in said county or city and county who has released any person on probation who at the time of such report remains on probation; and a further copy to the secretary of the state board of charities and corrections. Such report shall state, without giving names, the exact number of persons, segregating male and female, and segregating misdemeanors and felonies, who have been released on probation to such probation officer as such number exists, deducting all cases of expiration, discharge, dismissal, and restoration of rights, on said thirtieth day of June and said thirty-first day of December; and such report shall further segregate such person as having been released on probation, as the case may be, in one thousand nine hundred three, one thousand nine hundred four, one thousand nine hundred five and so on, up to and including the calendar year in which such report is made and filed. 11. [Statement of terms of probation.] The probation officer shall furnish to each person who has been released on probation, and committed to his care a written statement of the terms and conditions of his probation unless such statement has been furnished by the court, and shall report to the court, judge, or justice, releasing such person upon probation, any violation or breach of the terms and conditions imposed by such court on the person placed in his care. 12. [Powers of probation officer.] Such probation officer shall have, as to the person so committed to the care of said probation officer, the powers of a peace officer. 1. History: Enacted February 14, 1872; amended February 23, 1903, Stats. and Amdts. 1903, p. 34; March 18, 1905, Stats. and Amdts. 1905, p. 162; March 13, 1909, Stats. and Amdts. 1909, p. 357; April 6, 1911, Stats. and Amdts. 1911, p. 689; May 23, 1913, Stats, and Amdts. 1913, p. 221; May 31, 1917, Stats. and Amdts. 1917, p. 1409. In effect July 30, 1917. Hearing on probation-Construction of section. The only question which may arise can never be as to the action of the court in refusing to admit a convicted person to probation, but must always be, if any reviewable questions may arise under this section at all, whether the court abused its discretion in granting probation.-People v. Dunlop, 27 Cal. App. 460, 150 Pac. 389. § 1204. 1. Former conviction or mitigating facts -Construction of section.-This section does not pretend to prescribe either the quantum or the character of the evidence essential to the proof of a prior conviction where the fact of such conviction is pleaded or set out in the information or indictment. The manifest object of the section is to authorize the court, after conviction and before sentence, to receive testimony either in mitigation or aggravation of the punishment to be imposed. To this end any testimony bearing upon the character or antecedents of the convicted person may be presented to the court. This section has no application to a case where the defendant is put upon trial under an indictment or information charging him, in addition to the later offense, with a prior conviction of a similar or other public offense.-People v. Rudolph, 28 Cal. App. 683, 153 Pac. 721. 2. In such case, unlike those where under sections 666 and 667, a prior conviction is charged in addition to the crime subsequently committed, the court is not authorized or empowered to impose a greater punishment than the maximum penalty prescribed for the particular crime of which the accused has been convicted.-People v. Rudolph, 28 Cal. App. 683, 153 Pac. 721. § 1214. 1. Abatement of proceedings by death.— Where a defendant had been adjudged to pay a fine and death occurs pending an appeal from such judgment, in the absence of a statute to the contrary, all proceedings in the matter incurably abate.-People v. de St. Maurice, 166 Cal. 201, 135 Pac. 952. § 1217. 1. Warrant in judgment of death-Construction of section.—The defendant's presence at the time of signing and attesting the warrant is neither contemplated nor required. People v. Witt, 170 Cal. 104, 148 Pac. 928. TITLE IX. OF APPEALS TO THE SUPREME COURT. CHAPTER I. APPEALS, WHEN ALLOWED AND HOW TAKEN, AND THE EFFECT THEREOF. § 1239. Appeals, within what time to be taken. § 1238. 1. Appeals by defendant-Construction of section. An appeal will not lie except it be one specified in this section (by Supreme Court on rehearing).-People v. Knowles, 27 Cal. App. 498, 506, 155 Pac. 137, 140. 2. An order granting a motion to dismiss a criminal action after a plea of not guilty designed solely to prevent further prosecution because the grand jury had not complied with section 1324 is not an order within the meaning of this subdivision, but is an order of dismissal from which no appeal lies (by Supreme Court on rehearing). -People v. Knowles, 27 Cal. App. 498, 506, 155 Pac. 137, 140. § 1239. APPEALS, WITHIN WHAT TIME TO BE TAKEN. An appeal from a judgment may be taken by the defendant by announcing personally or through his attorney in open court at the time the judgment is rendered that he appeals from the same or by filing a written notice of appeal within two days after the rendition of judgment with the clerk of the court wherein judgment was rendered; and from any order made after judgment, by announcing in open court at the time the same is made that he appeals from the same. History: Enacted February 14, 1872; founded on § 485, Criminal § 1246. stitutional, see History, § 5 ante; amended March 18, 1907, Stats, and Amdts. 1907, p. 559, Kerr's Stats. and Amdts. 1906-7, p. 540; April 22, 1909, Stats. and Amdts. 1909, p. 1086; April 5, 1917, Stats. and Amdts. 1917, p. 37. In effect July 27, 1917. APPEALS-PAPERS TO BE TRANS- 1, 2. Construction of section-In general. 1. Construction of section-In general.— It was evidently the design of the legislature to have the record provided for herein as amended and section 1247 cover wholly the matter of the record on appeal and thus dispense entirely with bills of exceptions. Sections 1171, 1174, 1175, 1177 formerly provided for bills of exceptions, but were repealed in 1909. This section must be liberally construed with a view to enable a defendant to bring up all matters properly cognizable by the appellate court.-People v. Fleming, 166 Cal. 357, Ann. Cas. 1915B 881, 136 Pac. 291. 2. Arguments made by counsel to the court on questions of law arising during the trial should not be incorporated in the transcript of the proceedings to be used on appeal.-People v. Miller, 171 Cal. 649, 154 Pac. 468. 3. Subdivision 6.-Subdivision 6 may be construed to include the affidavits presented on motion for a new trial. The affidavits should be so referred to and identified as to make at least a prima facie case that they are the precise and only affidavits presented on the motion.-People v. Fleming, 166 Cal. 357, Ann. Cas. 1915B 881, 136 Pac. 291. § 1247. 1. Settlement of grounds of appealConstruction of section. In an application for an appeal it is sufficient to state the grounds of the appeal without specifying the points upon which the appellant relies, as there is no substantial distinction intended in the use of the two words.-People v. Preciado, 31 Cal. App. 519, 160 Pac. 1090. § 1248. 1. Dismissal of appeal for irregularitiesConstruction of section.-An appeal will not be dismissed under this section where the defendant stated "in general terms the grounds" specifically enough to indicate upon what errors he would rely, and he designated the portions of the reporter's notes which were deemed "necessary to have transcribed to fairly present the points relied upon."-People v. Preciado, 31 Cal. App. 519, 160 Pac. 1090. § 1253. 1. Afirmance on failure to appear.Where the attorneys of record failed to file any memorandum of points and authorities, and did not appear when the cause was called for argument, but the court at the request of another attorney who offered to appear gave him twenty days to file a brief but none was filed, the court will assume that no ground for reversal exists and af1917 Sup.-46. firm the judgment.-People v. Roy, 26 Cal. App. 128, 146 Pac. 44. 2. Upon an appeal taken from a judgment of conviction in a criminal action, the judgment may be affirmed where the appellant fails to appear at the time set for argument of the appeal.-People v. Andrade, 31 Cal. App. 730, 161 Pac. 754. § 1259. WHAT REVIEWED ON APPEAL. 1, 2. As to prejudicial error. 3-5. Misconduct of district attorney. 1. As to prejudicial error. Where the error complained of was trivial or the record showed that no prejudice to a substantial right could have resulted to the defendant it is the practice to disregard the error. But where the error was neither of these, but one which might have turned the scale against the defendant, the limitation of the appellate jurisdiction to questions of law precludes the reviewing court from weighing the evidence to see whether or not in fact the error had worked injury, the court naturally is bound to apply the doctrine that prejudice was presumed to follow from substantial error.-People v. O'Bryan, 165 Cal. 55, 130 Pac. 1042. 2. Prejudice to the substantial rights of one on trial does not necessarily follow from the mere commission of error.-People v. Stephens, 29 Cal. App. 616, 157 Pac. 570. 3. Misconduct of district attorney.-For a district attorney to make a misstatement of evidence is not in itself reversible error.People v. Davis, 26 Cal. App. 647, 147 Pac. 1185. 4. Misconduct of the district attorney in argument is not disclosed on appeal where the transcript does not show the language he used.-People v. Valencia, 27 Cal. App. 407, 150 Pac. 68. 5. Misconduct of the district attorney in clashing with counsel for the defendant to the point of indulging in personalities is not ground for reversal if the court each time administers a reprimand and corrects evil tendencies by proper admonitions to the jury.-People v. Holloway, 28 Cal. App. 214, 151 Pac. 975. § 1272. BAIL UPON APPEAL. 1. Construction of section. 2-4. Discretion of court-Trial court. 5, 6. Appellate court will interfere when. 1. Construction of section. By section 1272 of the Penal Code admission to bail pending appeal is a matter of discretion, and by section 1291 the power to admit to bail is lodged in any magistrate having the power to issue a writ of habeas corpus. This wide distribution to power necessitates the adoption and adherence to some consistent 4149 rule governing such proceedings, otherwise constant confusion would ensue.-People v. Cornell, 28 Cal. App. 654, 153 Pac. 726. 2. Discretion of court-Trial court.—Admission to bail after conviction is purely a matter of discretion and not of right, and it has been several times held by the supreme court of this state that such discretion should not be exercised in favor of the liberation of a defendant pending appeal, except in instances where circumstances of an extraordinary character have intervened since conviction, which makes it obviously proper. The discretion in cases of this kind is vested primarily in the court that tried the case, or the judge thereof, and the determination of the latter should not be disturbed or ignored except in an instance of manifest abuse. People v. Cornell, 28 Cal. App. 654, 153 Pac. 726. 3. Bail after conviction being a matter of discretion, such discretion should not be exercised in favor of the liberation of a defendant pending appeal, except in instances where circumstances of an extraordinary character have intervened since conviction, which makes it obviously proper.-Matter of Application of Preciado, 30 Cal. App. 323, 158 Pac. 1063. 4. Such discretion should not be exercised in favor of the liberation of a defendant pending appeal, except in instances where § 1322. circumstances of an extraordinary character have intervened since conviction, which makes it obviously proper.-Matter of Application of Preciado, 30 Cal. App. 323, 158 Pac. 1063. 5. Appellate court will interfere when. -An appellate court should not interfere with the determination of a trial court upon an application for bail pending appeal except in cases of manifest abuse of discretion. People v. Cornell, 28 Cal. App. 654. 153 Pac. 726. 6. An application to an appellate court for admission to bail after denial of a like petition in the trial court is governed by the rule that interference should not be made with the determination of the trial court except in cases of manifest abuse of discretion. People v. Cornell, 28 Cal. App. 654, 153 Pac. 726. § 1291. 1. Who may admit to bail.—Application for bail after conviction and pending the determination of an appeal should be made in the first instance before the judge who tried the cause, and his determination should not be disturbed or ignored except in an instance of manifest abuse.-Matter of Application of Preciado, 30 Cal. App. 323, 158 Pac. 1063. TITLE X. MISCELLANEOUS PROCEEDINGS. CHAPTER II. WHO MAY BE WITNESSES IN CRIMINAL ACTIONS. § 1324. Witness not to be prosecuted upon testimony of himself [repealed]. Competency of 1. witnesses-Husband and wife-Construction.-The adoption of section 2 of the Pimping Act (Stats. 1911, p. 10) added another exception to those contained herein under which the wife of the defendant was competent as a witness. This section was amended by Stats. 1911, p. 270, but made no reference to subdivision 2 of the act defining the crime of pimping. As amended this section contains no repealing clause. Manifestly the legislature did not intend to render the provision of the Pimping Act inoperative by merely adding another exception to this section. The provisions of this section are not inconsistent with section 2 of Stats. 1911, p. 10, known as the Pimping Act.-People v. Edwards, 28 Cal. App. 716, 153 Pac. 975. 7. Compelling to testify stand up. 1. Construction of section.-A defendant in a criminal action or proceeding can not be compelled to be a witness against himself; his neglect or refusal to be a witness can not in any manner prejudice him, nor be used against him on the trial or proceeding.-People v. Andrade, 29 Cal. App. 1, 154 Pac. 283. 2. Comment on refusal of defendant to testify. It is improper for the district attorney to comment on the failure of the defendant to testify on any subject connected with the trial, although he may have been a witness and may have testified on other subjects. People v. Kromphold, 172 Cal. 512, 157 Pac. 599. 3. Certainly if a defendant may not be compelled to be a witness against himself, a prosecuting officer may not comment adversely upon his failure to take the witness stand in his own behalf.-People v. Waugh, 30 Cal. App. 402, 158 Pac. 336. 4. Cross-examination of defendant-Extent of.-Where the defendant took the stand as a witness in his own behalf and defendant-Ex testified that he had never seen the deceased and his companion before, that he did not shoot at or aim at the deceased and did not intend to kill him, but only to scare him, in seeking to obtain answers which would support the claim that defendant was actuated by motives of hostility to the deceased, the prosecution does not go beyond the bounds as defined which permit cross-examination "as to all matters about which he was examined in chief."-People v. O'Bryan. 165 Cal. 55, 130 Pac. 1042. 5. While a defendant in a criminal action or proceeding can not be compelled to be a witness against himself, yet if he offers himself as a witness he may be cross-examined as to all matters about which he was examined in chief.-People v. Creeks, 170 Cal. 368, 149 Pac. 821. 6. The cross-examination is not limited to the particular details expressly contained the questions on direct examination. in Where a fact denied by the defendant in his testimony covers the whole case or any branch of the case, the matter to be tested by the cross-examination is the truth or the falsity of that denial, just as if it had been a denial of some more particular detail of fact. The people have the right on crossexamination to draw out anything which will tend to contradict the evidence of the defendant adduced on his direct examination or weaken or modify its effect.-People v. Turco, 29 Cal. App. 608, 156 Pac. 1001. $ 1324. WITNESS NOT TO BE PROSECUTED UPON TESTIMONY OF HIMSELF [repealed]. History: Enactment approved March 24, 1911, Stats. and Amdts. WITNESS NOT TO BE PROSECUTED ON 1, 2. As to generally. 3-7. Construction of section and its effect. 8. Constitutionality of section. 1. As to generally.-An order dismissing a criminal action against a defendant upon the ground that the grand jury finding the indictment did not comply with section 1324 of the Penal Code, is not an appealable order. People v. Knowles, 27 Cal. App. 498, 155 Pac. 140. 2. In order to justify the contention that because one was called and examined before another court concerning matters affecting the transaction set forth in the information, without first having read to him this section, no further proceedings could be taken against him and the court could not sentence him, it must be shown that the testimony given was of an incriminating nature.-People v. Richman, 28 Cal. App. 761, 155 Pac. 142. 3. Construction of section and its effect.Briefly paraphrased this section means that · a witness can no longer refuse to testify in a criminal case though his testimony may incriminate himself, but if he demands that he be excused on that ground he shall not be liable thereafter to prosecution. If, however, he testifies voluntarily, or if he fails to ask to be excused from testifying on the ground stated, his testimony may be used against him. But he is deemed to have asked to be excused from testifying "under this section, unless before any testimony is given... the judge, foreman, or other person presiding at such trial, hearing, proceeding or investigation, shall distinctly read this section of this code to such witness." And one objection to a question shall be sufficient to protect such witness from prosecution.-People V. Knowles, 27 Cal. App. 498, 155 Pac. 140. 4. Before the enactment of this section there was no power to compel a witness to testify when he believed that his testimony would implicate himself, and there was no power to grant him immunity from prosecution if he did testify. The legislature pointed out in this section the precise mode to be followed. The essential provisions of the section must be stated to the witness and stated correctly. Its substance at least must be told. Inasmuch as it is very simple to read the section as directed that is the better and safer practice.-People v. Knowles, 27 Cal. App. 498, 155 Pac. 140. 5. The whole purpose of this enactment seems to have been to enable prosecuting officers to obtain the testimony of persons implicated in a criminal transaction without violating the constitutional provision giving to every person the right to refuse to incriminate himself by his testimony.-People v. Richman, 28 Cal. App. 761, 155 Pac. 142. 6. Where the defendant did not testify. but made certain extrajudicial statements in which the record shows that he made no objection to giving his connection with the affair and which appear to have been voluntarily made, this section has no application.-People v. Dye, 29 Cal. App. 169, 154 Pac. 875. 7. This provision was not intended to apply to codefendants called as witnesses for the defense, but to enable the prosecuting officer to obtain the testimony of those particeps criminis to a crime for the commission of which another is being prosecuted.— People v. Allen, 32 Cal. App. 110, 162 Pac. 401. |