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ders a new trial, the former conviction is no bar to a new trial: People v. Olwell, 28 Id. 456; People v. Barric, 49 Id. 342. Where an indictment is set aside on defendant's motion, and the case ordered submitted to another grand jury, it does not amount to an acquittal: People v. Varnum, 53 Id. 630; Ex parte Cahill, 52 Id. 463; People v. March, 6 Id. 543. Nor does the examination and dismissal of a charge by the grand jury, without an order by the court for a resubmission of the case to another grand jury, amount to jeopardy: Ex parte Clarke, 54 Id. 412. Where the verdict is so defective and uncertain that no judgment can pass, it may be set aside, and the proceedings theretofore had will be no bar to another trial: People v. Baza, 53 Id. 690. The defendant was indicted for manslaughter, and on his trial the court, against his consent, discharged the jury, being of opinion that the evidence showed defendant to be guilty of murder; defendant was afterwards indicted and tried for murder for the same homicide: Held, that he is twice put in jeopardy: People v. Hunckeler, 48 Id. 331. Where one is subjected to increased punishment for a second offense, he is not twice put in jeopardy for the same offense. The increased punishment is not a punishment for the first offense, but is inflicted because of persistence in crime: People v. Stanley, 47 Id. 113; People v. Lewis, 64 Id. 401. The pendency of one information does not affect the right of the prosecution to present another against defendant for the same offense: Kalloch v. Superior

Court, 56 Id. 229. A defendant indicted for an offense is indicted for every lesser grade that may be included under it, and if convicted of one of the lesser offenses, it amounts to an acquittal of all offenses higher than that of which he is convicted, and if a new trial is granted, he cannot be tried for any higher offense than that of which he was convicted: People v. Gilmore, 4 Id. 376; People v. Apgar, 35 Id. 389. And see People v. Helbing, 61 Id. 620, But the lesser does not include the greater, and a conviction on an indictment for an assault is not a bar to a subsequent trial for battery: Id. "To entitle a defendant to the plea of autrefois convict or acquit, it is necessary that the offense charged be the same in law and in fact:" Id. If the defendant, when arraigned, pleads guilty, and his plea is entered of record, such proceeding amounts to a conviction, and is a good defense if he is again indicted for the same offense, although no judgment was pronounced upon the plea of guilty: People v. Goldstein, 32 Id. 432. It has been said that if the district attorney obtain the discharge of one of several defendants jointly indicted, in order to use such defendant as a witness for the people, such discharge from the indictment would, in its legal effect, be an acquittal and bar another prosecution: People v. Bruzzo, 24 Id. 41.

For plea of previous conviction or acquittal, or of once in jeopardy, see sec. 1016, note. Dismissal no bar: See sec. 999.

688. No person to be witness against himself in criminal action, or unnecessarily restrained.

SEC. 688. No person can be compelled, in a criminal action, to be a witness against himself; nor can a person charged with a public offense be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge.

Defendant as a witness.-A person cannot be compelled, in any criminal case, to be a witness against himself: Const. Cal., sec. 13, art. 1; U. S. Const., amend. 5; People v. King, 64 Cal. 338. But he may testify in his own behalf, and if he does so is subject to be cross-examined: Sec. 1323, note.

Unnecessary restraint.-Where the court

required the prisoner, during the progress of his trial, to appear and remain with chains and shackles upon his limbs, without any evident necessity of so doing, it was held such a violation of the rights of defendant as entitled him to a new trial: People v. Harrington, 42 Cal. 165. For right of defendant to be admitted to bail, see section 1268, note.

689. No person to be convicted but upon verdict or judgment.

SEC. 689. No person can be convicted of a public offense unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon judgment against him upon a demurrer in the case mentioned in section ten hundred and eleven, or upon a judgment of a court, a jury having been waived in a criminal case not amounting to felony. [Amendment, approved April 25, 1880; Amendments 1880, 4 (Ban. ed. 9); took effect immediately.]

Cited in People v. King, 64 Cal. 338. Refusal to plead after demurrer overruled: Sec. 1011, note.

Preliminary provisions.-The following is taken from the commissioners' note, published in 1872: Under this chapter of 'preliminary provisions,' it may be generally said that as a necessary concomitant to all statutes declaring acts or omissions to be criminal, a mode of procedure to inflict the penalty provided must exist. Heretofore, if the statute did not pro

vide a mode of procedure, the common law of England, as it is familiarly known, but which, from the fact that it was the common law of our mother country, has been so frequently adopted by statute, so universally recognized and acted upon by our courts for supplying omissions and defects in statutory law, that it is by them recognized as one of our own naturalized and well-established institutions, and may now be well called the common law of the United States, furnished a method of

procedure which was usually pursued by them. Some of the more prominent features of this system are: 1. The presumption of innocence, and right to reasonable doubt of guilt; 2. Not to be held to answer except by inquest of a grand jury; 3. Trial by jury of his peers; 4. The determination of guilt or innocence with out reference to general character; 5. Not to require prisoner to criminate himself nor to exculpate himself by giving his testimony; 6. Must not be tried twice for the same offense; 7. Nor be punished for an act done prior to the passage of the statute making it an offense, nor by a severer punishment than that there provided. It may be correctly remarked that the custom of some continental European systems of allowing general character, habits of life,

previous history, and other surroundings to be subjects of inquiry by the court in determining the probabilities of the guilt or innocence of one accused of crime, whilst it has not received favor in our courts, or at least has no status as furnishing evidence for the defense, yet the permission given by the statutes of several states and this code to the defendant to testify in his own defense, looks to the observant like a step in the direction of relaxing rules heretofore rigidly observed. The general principles of our system, here enumerated and contained in the preceding sections, are the subjects of constitutional guaranty and protection, and this code consequently rigidly adheres to them, except that a defendant, if he desires to do so, may testify in his own behalf."








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692. Lawful resistance, by whom made.

SEC. 692. Lawful resistance to the commission of a public offense may be made:

1. By the party about to be injured; 2. By other parties.

Repulsion of felonious assault.-East, in his Pleas of the Crown, thus states the resistance a man may use in preventing the commission of a crime: "A man may repel force by force, in defense of his person, habitation, or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, burglary, and the like, upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger; and if he kill him in so doing, it is called justifiable self-defense:" East P. C. 272. The fear that a man intends to commit a crime, however well grounded, unaccompanied by some overt act indicative of such intention, will not justify a killing of the party by way of prevention: Id. 272; Stoneman v. Commonwealth, 25 Gratt. 887, and cases there cited. The right to defend one's person results from necessity: People v. Pool, 27 Cal. 572. A person may lawfully oppose another who is committing a felony, even to the taking of his life; and although his justification rests upon the right of self-defense, it also depends upon the authority with which the law invests


every man to resist the commission of a felony: 1 Bish. Crim. L., sec. 849; Aaron v. State, 31 Ga. 167; Staten v. State, 30 Miss. 619. In the latter case it was held that a person may justifiably slay another if he has reasonable ground to apprehend a design on the part of latter to commit a felony on or do some great personal injury to his wife, and there shall be imminent danger of such design being accomplished. Although a man may use as much force as is necessary for the protection of his person or property, still he is not entitled, except in extreme cases, to endanger human life, or commit great bodily harm. A person cannot kill another justifiably, unless necessary to save life or limb, or prevent the commission of a great crime. So if a person kill another to prevent the commission of a trespass, he is guilty of murder: 1 Whart. Crim. L., Sth ed., sec. 484. He is not justified in using extreme measures when the resort to moderate force would furnish the required protection, or prevent the commission of a public offense. This right to use such resistance as may be necessary to prevent the commission of a crime is not confined to the prevention of offenses against


his own person, but extends to his family, or of some member thereof, and also to the protection of property lawfully in his possession against any illegal attempt to take or injure it: See next section; Civ. Code, sec. 50; Archb. Crim. Pl. 693, 697; 1 Bish. Crim. L., sec. 877; Staten v. State, 30 Miss. 619; Stoneman v. Com

monwealth, 25 Gratt. 887; Bristow v. Commonwealth, 15 Id. 634; Patten v. People, 18 Mich. 314.

Prevention of felony: Sec. 197, note.
Self-defense: Sec. 197, note.

Bare fear not sufficient to justify killing: Sec. 198, note.

693. By the party, in what cases and to what extent.

SEO. 693. Resistance sufficient to prevent the offense may be made by the party about to be injured:

1. To prevent an offense against his person, or his family, or some member thereof;

2. To prevent an illegal attempt by force to take or injure property in his lawful possession.

694. By other parties in what cases.

SEC. 694. Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense.



697. Intervention of officers, in what cases.

SEC. 697. Public offenses may be prevented by the intervention of the officers of justice:

1. By requiring security to keep the peace;

2. By forming a police in cities and towns, and by requiring their attendance in exposed places;

3. By suppressing riots.

Subd. 1. Security to keep the peace. "In all cases of misdemeanor the court has, from the common law, authority, to be exerised or not, as a sound discretion may dictate, to require as a part of the sentence that the defendant give bonds to keep the peace and be of good behavior:" 1 Bish. Crim. L., sec. 945; see Dunn v. Queen, 12 Ad. & El., N. S., 1031, 1040; Regina v. Hart, 30 How. St. Tr. 1131, 1194, 1344; O'Connell v. Queen, 11 Cl. & Fin. 155; Queen v. Dunn, 12 Jur. 99; Territory v. Nugent, 1 Mart. (La.) 103; 2 Whart. Crim. L., 8th ed., sec. 1555; see secs. 701-714.

Subd. 2. Police force: See secs. 719, 720. Subd. 3. Suppression of riots. It is the duty of the sheriff, or any other officer of the peace, to do everything that is within his power to prevent or suppress a riot. It is not necessary to wait until the unlawful assembly ripens into an actual riot: 2 Whart. Crim. L., 8th ed., sec. 1555. "For it is better to anticipate more dangerous results, by energetic intervention at the inception of a threatened breach of the peace, than by delay to permit the tumult to acquire such strength as to demand for its

698. Persons acting in their aid justified.


suppression those urgent measures which should be reserved for great extremities:" Id. Such officers may arrest such offenders and compel them to give security to keep the peace. They may also call upon others to assist in the arrest, and any person so called upon is bound to do everything in his power to keep the peace: King v. Pinney, 3 Barn. & Adol. 947; 5 Car. & P. 254; Regina v. Neale, 9 Id. 434; 2 Whart. Crim. L., 8th ed., secs. 1555, 1584. zens may, of their own authority, lawfully endeavor to suppress the riot, and for that purpose may even arm themselves; and whatever is honestly done by them in the execution of that object will be supported and justified by the common law. It is the duty of every citizen to make such endeavor, and when the rioters are engaged in the commission of high crimes, the law protects other persons in repelling them by force." 2 Whart Crim. L., 8th ed., sec. 1555; Řespublica v. Montgomery, 1 Yeates, 419; see secs. 723–733.

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SEC. 698. When the officers of justice are authorized to act in the prevention of public offenses, other persons, who, by their command, act in their aid, are justified in so doing.



701. Information of threatened offense.

SEC. 701. An information may be laid before any of the magistrates mentioned in section eight hundred and eight, that a person has threatened to commit an offense against the person or property of another.

"Stats. 1863, 158. The section referred to is section 103 of the crimes and punishment act of 1851; the word 'information' is used in place of the word 'complaint,' as more expressive. That a named person is menacing or threatening to do towards or against the person or property of another an act which the Penal Code forbids to be done, or is omitting

to do that which it commands, must be the subject of the information provided for in the text. The threat of an intention to commit the offense must appear to be one which will be executed unless the person so threatening is further restrained than he seems to be by the fact that the act is in violation of the law:" Commissioners' note.

702. Examination of complainant and witnesses.

SEC. 702. When the information is laid before such magistrate he must examine on oath the informer, and any witness he may produce, and must take their depositions in writing, and cause them to be subscribed by the parties making them.

"This should be in concise language, stating all the jurisdictional facts, and should clearly specify the threatened offense, and when re

703. Warrant of arrest.

duced to writing and sworn to constitutes the complaint or information upon which the warrant issues:" Commissioners' note.

SEO. 703. If it appears from the depositions that there is just reason to fear the commission of the offense threatened, by the person so informed against, the magistrate must issue a warrant, directed generally to the sheriff of the county, or any constable, marshal, or policeman in the state, reciting the substance of the information, and commanding the officer forthwith to arrest the person informed of and bring him before the magistrate.

704. Proceedings on charges being controverted.

SEC. 704. When the person informed against is brought before the magistrate, if the charge be controverted, the magistrate must take testimony in relation thereto. The evidence must be reduced to writing and subscribed by the witnesses.

705. Person complained of, when to be discharged.

SEC. 705. If it appears that there is no just reason to fear the commission of the offense alleged to have been threatened, the person complained of must be discharged.

No just reason to fear.-The question to be determined is whether the prosecuting witness had just reason to fear at the time the action is

commenced, and not when the trial is had: State v. Steward, 48 Ind. 146; see State v. Sayer, 35 Id. 379.

706. Security to keep the peace, when required.

SEC. 706. If, however, there is just reason to fear the commission of the offense, the person complained of may be required to enter into an undertaking in such sum, not exceeding five thousand dollars, as the magistrate may direct, with one or more sufficient sureties, to keep the peace towards the people of this state, and particularly towards the informer. The undertaking is valid and binding for six months, and may, upon the renewal of the information, be extended for a longer period, or a new undertaking may be required. Security to keep the peace: Sec. 697, in note.

707. Effect of giving or refusing to give security.

SEC. 707. If the undertaking required by the last section is given, the party informed of must be discharged. If he does not give it, the magistrate must commit him to prison, specifying in the warrant the requirement to give security, the amount thereof, and the omission to give the same.

708. Person committed for not giving security, how discharged.

SEO. 708. If the person complained of is committed for not giving the undertaking required, he may be discharged by any magistrate upon giving the


709. Undertaking to be filed in clerk's office.

SEC. 709. The undertaking must be filed by the magistrate in the office of the clerk of the county.

710. Security for assault committed in presence of court or magistrate.

SEC. 710. A person who, in the presence of a court or magistrate, assaults or threatens to assault another, or to commit an offense against his person or property, or who contends with another with angry words, may be ordered by the court or magistrate to give security, as in this chapter provided, and if he refuse to do so, may be committed as provided in section seven hundred and


711. Undertaking, when broken.

SEC. 711. Upon the conviction of the person informed against of a breach of the peace the undertaking is broken.

712. Undertaking, when and how prosecuted.

SEC. 712. Upon the district attorney's producing evidence of such conviction to the superior court of the county, the court must order the undertaking to be prosecuted, and the district attorney must thereupon commence an action upon it in the name of the people of this state. [Amendment, approved April 12, 1880; Amendments 1880, 31 (Ban. ed. 198); took effect immediately.]

713. Evidence of breach.

SEC. 713. In the action the offense stated in the record of conviction must be alleged as a breach of the undertaking, and such record is conclusive evidence of the breach.

714. Security for the peace not required, except in accordance with this chapter. SEC. 714. Security to keep the peace, or be of good behavior, cannot be required except as prescribed in this chapter.

"These proceedings are provided for securing a more perfect respect for the law than their mere existence carries to the person upon whom they are intended to operate. Every one is presumed to know the law, but in many

instances, as a matter of fact, the existence of the law is unknown. By these proceedings, therefore, an actual breach of the law may be prevented where an ignorant violation would be punished:" Commissioners' note.


POLICE IN CITIES AND TOWNS, AND THEIR ATTENDANCE AT EXPOSED PLACES. 719. Organization and regulation of the police.

SEC. 719. The organization and regulation of the police, in the cities and towns of this state, is governed by special laws.

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