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CHAPTER II.

OF THE REMOVAL OF CIVIL OFFICERS OTHERWISE THAN BY IMPEACHMENT. 758. Accusation to be presented by grand jury.

SEC. 758. An accusation in writing against any district, county, township, or municipal officer, for willful or corrupt misconduct in office, may be presented by the grand jury of the county for or in which the officer accused is elected or appointed.

Removal of civil officers otherwise than by impeachment.-Under this section, which is taken from article 4, section 18, of the state constitution, all officers, other than those named in section 737 as liable to impeachment, are liable to be tried for misconduct in office, and if found guilty, removed therefrom. The constitutional provision just referred to reads: "All other civil officers shall be tried for misdemeanor in office in such manner as the legislature may provide." The appointing power has no authority to remove officers the duration of whose term is provided for by law:

759. Form of accusation.

People v. Jewett, 6 Cal. 291. If the duration of an office is not fixed, the appointing power may exercise the power of removal at pleasure: People v. Hill, 7 Id. 97; People v. Squires, 14 Id. 12; see People v. Mizner, 7 Id. 519. The legislature may extend the term of an incumbent when an office has been filled by an elec tion: Christy v. Board of Supervisors, 39 Id. 3. So it may abolish or change an office created by it, and it may extend or abridge the terms of its incumbents at pleasure: In re Bulger, 45 Id. 553.

SEC. 759. The accusation must state the offense charged, in ordinary and concise language, and without repetition.

760. Accusation of impeachment to be transmitted to district attorney, and copy served on defendant.

SEC. 760. The accusation must be delivered by the foreman of the grand jury to the district attorney of the county, except when he is the officer accused, who must cause a copy thereof to be served upon the defendant, and require, by notice in writing of not less than ten days, that he appear before the superior court of the county, at a time mentioned in the notice, and answer the accusation. The original accusation must then be filed with the clerk of the court. [Amendment, approved April 12, 1880; Amendments 1880, 32 (Ban. ed. 199); took effect immediately.]

761. Proceedings if defendant does not appear.

SEC. 761. The defendant must appear at the time appointed in the notice and answer the accusation, unless for some sufficient cause the court assign another day for that purpose. If he does not appear, the court may proceed to hear and determine the accusation in his absence.

762. Defendant may object to or deny the accusation.

SEC. 762. The defendant may answer the accusation either by objecting to the sufficiency thereof, or of any article therein, or by denying the truth of the

same.

763. Form of objection.

SEO. 763. If he objects to the legal sufficiency of the accusation, the objection must be in writing, but need not be in any specific form, it being sufficient if it presents intelligibly the grounds of the objection.

764. Manner of denial.

SEC. 764. If he denies the truth of the accusation, the denial may be oral and without oath, and must be entered upon the minutes.

765. If objections overruled, defendant to answer.

SEC. 765. If an objection to the sufficiency of the accusation is not sustained, the defendant must answer thereto forthwith.

766. Proceedings upon plea of guilty, refusal to answer, or denial.

SEC. 766. If the defendant pleads guilty, or refuses to answer the accusation, the court must render judgment of conviction against him. If he denies the matters charged, the court must immediately, or at such time as it may appoint, proceed to try the accusation.

767. Trial by jury.

SEC. 767. The trial must be by a jury, and conducted in all respects in the same manner as the trial of an indictment for a misdemeanor.

768. State and defendant entitled to process for witnesses.

SEC. 768. The district attorney and the defendant are respectively entitled to such process as may be necessary to enforce the attendance of witnesses as upon a trial of an indictment.

769. Judgment upon conviction, and its form.

SEC. 769. Upon a conviction the court must, at such time as it may appoint, pronounce judgment that the defendant be removed from office; but, to warrant a removal, the judgment must be entered upon the minutes, and the causes of removal must be assigned therein.

770. Appeal, how taken.

SEC. 770. From a judgment of removal an appeal may be taken to the supreme court, in the same manner as from a judgment in a civil action; but until such judgment is reversed, the defendant is suspended from his office. Pending the appeal, the office must be filled as in case of a vacancy.

This chapter is based on Stats. 1851, 212 et seq.; 1863, 158.

771. Proceedings for removal of district attorney.

SEC. 771. The same proceedings may be had on like grounds for the removal of a district attorney, except that the accusation must be delivered by the foreman of the grand jury to the clerk, and by him to a judge of the superior court of the county, who must thereupon appoint some one to act as prosecuting officer in the matter, or place the accusation in the hands of the district attorney of an adjoining county, and require him to conduct the proceedings. [Amendment, approved April 12, 1880; Amendments 1880, 32 (Ban. ed. 199); took effect immediately.]

772. Removal of public officers by summary proceedings before superior courts. SEC. 772. When an accusation in writing, verified by the oath of any person, is presented to a superior court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered, or to be rendered, in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the accusation was presented, and on that day, or some other subsequent day not more than twenty days from that on which the accusation was presented, must proceed to hear, in a summary manner, the accusation and evidence offered in support of the same, and the answer and evidence offered by the party accused; and if, on such hearing, it appears that the charge is sustained, the court must enter a decree that the party accused be deprived of his

office, and must enter a judgment for five hundred dollars in favor of the informer, and such costs as are allowed in civil cases. [Amendment, approved April 12, 1880; Amendments 1880, 33 (Ban. ed. 199); took effect immediately.]

Summary proceedings for removal of public officers.-This section is in substance a re-enactment of an act entitled "An act to prevent extortion in office, and to enforce official duty," approved March 14, 1853, Stats. 1853, 40. Under section 4 of that act it was held that any person was authorized to file the complaint therein mentioned who would take upon himself to institute an inquiry into the conduct of public officers, and that it was not necessary that such party should aver or prove that he was a party in interest in the strict sense, or that he had suffered any special damage by reason of the official neglect complained of. "It is not the personal interest of the complainant which the statute regards, but the higher and more important interest of the people and body politic in the honest and faithful discharge of official duties by public servants. The right of a private person to institute an inquiry into the conduct of office-holders under the act in question may be said to be akin to the right of every elector to contest the claim of any person asserting himself to have been elected to office:" Matter of Marks, 45 Cal. 199; see Minor v. Kidder, 43 Id. 229. The legislature may provide the manner in which all civil officers, other than those liable to impeachment, shall be tried for misdemeanor in office: Matter of Marks, 45 Id. 199. Before an officer can be removed from office for charging and receiving illegal fees, the court must find that such fees were knowingly, willfully, or corruptly taken: Triplett v. Munter, 50 Id. 644. If the charges made against an officer are unsustained, no judgment costs can be rendered against the people or state: People v. Kirkpatrick, 57 Id. 353.

Crimes, jurisdiction of.-Jurisdiction is the power to hear and determine causes. It is given by the law, and cannot be conferred by consent of the parties: People v. Granice, 50 Cal. 447. It is original when conferred upon certain officers or tribunals to hear and determine causes in the first instance, and appellate when the power is given to them to review by appeal the decisions of other officers or tribunals. In this state the original jurisdiction of the trial of all criminal cases amounting to a felony, and cases of misdemeanor not otherwise provided for, is vested in the superior court: Const. Cal., art. 6, sec. 5. The supreme court is vested with appellate jurisdiction in all criminal cases prosecuted by indictment or information in a court of record, on questions of law alone: Id., art. 6, sec. 4. By the constitution of 1863 the supreme court was vested with appellate jurisdiction in criminal cases only when they amounted to a felony, and then on questions of law alone: Const. 1863, art. 6, sec. 4; Peo

172

ple v. Shear, 7 Cal. 139; People v. Vick, Id. 165; People v. Cornell, 16 Id. 187; People v. War, 20 Id. 117; People v. Burney, 29 Id. 459; People v. Johnson, 30 Id. 98; People v. Apgar, 35 Id. 389; People v. Jones, 31 Id. 565; People v. Aubrey, 53 Id. 427. Under the present constitution appellate jurisdiction is given to the supreme court in all cases of felony, upon questions of law alone, and in all cases of misdemeanors, upon questions of law alone, that are prosecuted by indictment or information in a court of record. State tribunals have no jurisdiction to punish crimes against the laws of the United States: People v. Kelly, 38 Id. 145. Certain acts, however, may be crimes both by the laws of the United States, and of a particular state; and when this is so, both sovereignties may punish the offense: Fox v. State, 5 How. 410; United States v. Marigold, 9 Id. 560; Moore v. Illinois, 14 Id. 13, 20; People v. White, 34 Cal. 183; sec. 655. And a punishment of such acts by one of such governmental powers is no bar to a further punishment of the same acts by the other: 1 Bish. Crim. L., sec. 989. Although this is plainly the law, yet a punishment by one of such governments of certain acts which are criminal against both is generally regarded by the other as sufficient ground for ordering a nolle prosequi, or granting a pardon to the offender, when it is again attempted to punish him for the commission thereof: Id.; Commonwealth v. Fuller, 8 Met. 313; Harlam v. People, 1 Doug. 207, 212; Houston v. Moore, 5 Wheat. 1; People v. Westchester, 1 Park. Cr. 659; Commonwealth v. Barry, 116 Mass. 1; see Manley v. People, 7 N. Y. 295, 302; Hendrick v. Commonwealth, Leigh, 707. In this state it is a sufficient defense for a defendant to show that he has been prosecuted and convicted under the laws of another state, government, or country, for the same acts or omission for which he is here being tried: Sec. 656.

Locus delicti.-In all criminal prosecutions the venue must be alleged in the indictment, and proved by the people upon the trial as alleged: People v. Parks, 44 Cal. 105; People v. O'Neil, 48 Id. 257; People v. Roach, Id. 382; People v. Murphy, 51 Id. 376; People v. Bevans, 52 Id. 470. Upon appeal the record must show that the locus delicti was proved: See cases last cited. It is not necessary, however, that any particular witness should testify in so many words to the venue of the crime as alleged in the indictment; it is sufficient if all the testimony, taken together, leaves no room for a reasonable doubt on this point: People v. Manning, 48 Id. 335. As to whether evidence of general reputation is admissible to prove the locus delicti, see People v. McLane, 19 Id. 131.

TITLE III.

OF PROCEEDINGS IN CRIMINAL ACTIONS, PROSECUTED BY INDICTMENT, TO THE COMMITMENT, INCLUSIVE.

OF THE LOCAL JURISDICTION OF PUBLIC OFFENSES..

CHAPTER I.

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VII.

RETAKING AFTER AN ESCAPE OR RESCUE...

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EXAMINATION OF THE CASE, AND DISCHARGE OF DEFENDANT OR
HOLDING HIM TO ANSWER.

CHAPTER I.

OF THE LOCAL JURISDICTION OF PUBLIC OFFENSES.

States.

777. Jurisdiction of offenses committed in this state. SEC. 777. Every person is liable to punishment, by the laws of this state, for a public offense committed by him therein, except where it is by law cognizable exclusively in the courts of the United Penal laws, operation of-Penal laws are generally local in their operation, and are only intended to punish such offenses as are committed within the sovereignty in which they are enacted. One sovereignty has no jurisdiction over and will not undertake to punish crimes committed in another. Certain wellsettled exceptions exist to this rule, however. Where a criminal act perpetrated in one state or foreign sovereignty by continuity of operation takes effect in another, the courts of the latter have jurisdiction to punish the crime as if all the res gesto had taken place within its territory: May's Crim. L., sec. 41; Commonwealth v. Macloon, 101 Mass. 1; Tyler v. People, 8 Mich. 320; 1 Bish. Crim. L., secs. 114 et seq. A man need not be actually present in a country or state to render himself amenable to its laws. If crime is the immediate result of his act, he may be made to answer for it in the courts of the place where it is consummated, though he is not actually present in such place at the time. In contemplation of law he is present. Thus, if a man stand in one state,

and by firing a gun kill a man in another, he
would be answerable to the laws of the latter,
if ever he should come within their jurisdic-
tion: People v. Adams, 3 Denio, 207; People v.
Rathburn, 21 Wend. 509; State v. Chapin, 17
Ark. 561; Adams v. People, 1 N. Y. 173; United
States v. Davis, 2 Sumn. 482. So if a man
who resides in one country should by means of
an innocent agent commit a crime in another,
he is liable to punishment under the laws of
the latter when found within the jurisdiction
of such laws: May's Crim. L., sec. 41; Jones v.
State, 19 Ind. 421. So if a person residing in
one country should send poison by means of a
letter to another residing in a different coun-
try, for the purpose of poisoning such other,
and should succeed, he would be liable to pun-
ishment under the laws of the latter country:
People v. Rathbun, 21 Wend. 509; Regina v.
Garrett, 22 Eng. L. & Eq. 607.

Crime committed by person out of state:
Sec. 27, note.
Locus delicti: See sec. 1102, note.

778. When offense commenced without but consummated within this state. SEC. 778. When the commission of a public offense commenced without the state is consummated within its boundaries, the defendant is liable to punishment therefor in this state, though he was out of the state at the time of the commission of the offense charged. If he consummated it in this state through the intervention of an innocent or guilty agent, or any other means proceeding the offense is consummated. directly from himself, in such case the jurisdiction is in the county in which

Extraterritorial crime: See a valuable discussion, by Wharton, of this subject in 6 Crim. Law Mag. 155.

779. When inhabitant of this state concerned in duel out of same, and party wounded dies therein.

SEC. 779. When an inhabitant or resident of this state, by previous appointengagement, fights a duel or is concerned as second therein, out of the

ment or

jurisdiction of this state, and in the duel a wound is inflicted upon a person, whereof he dies in this state, the jurisdiction of the offense is in the county where the death happens.

780. When inhabitant leaves state to evade the statute against dueling or challenges to fight.

SEC. 780. When an inhal 'tant of this state leaves the same for the purpose of evading the operation of the provisions of the code relating to dueling and challenges to fight, with the intent or for the purpose of doing any of the acts prohibited therein, the jurisdiction is in the county of which the offender was an inhabitant when the offense was committed.

Leaving state to evade laws relating to dueling: See State v. Farrier, 1 Hawks, 487; State v. Taylor, 1 Treadw. 107; 3 Brev. 243.

781. When an offense committed partly in one county and partly in another.

SEC. 781. When a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.

Offense committed partly in one county and partly in another.-A person who receives property in one county and takes it into another, and there embezzles it, cannot be tried under this section in the former county, unless when he received the property there he had the intent to fraudulently convert it to his own use: People v. Murphy, 51 Cal. 376; see People

v. Wooley, 44 Id. 494; State v. Hamilton, 13 Nev. 386.

Indictment-See as to what indictment should allege when offense is committed partly in one county and partly in another: People v. Ah Own, 39 Cal. 604; People v. Wooley, 44 Id. 494.

782. When committed on the boundary, etc., of two or more counties.

SEC. 782. When a public offense is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction is in either county.

"Five hundred yards thereof;" People v. Wooley, 44 Cal. 494; People v. Salorse, 62 Id. 139; People v. Davis, 36 N. Y. 77. See an application of this section in a trial for larceny, 783. Jurisdiction of an offense on board a vessel, or on railroad train or car.

where the boundary between the counties of Los Angeles and Ventura was somewhat indefinite, in People v. Velarde, 59 Cal. 457.

SEC. 783. When an offense is committed in this state on board a vessel navigating a river, bay, slough, lake, or canal, or lying therein, in the prosecution of her voyage, the jurisdiction is in any county through which the vessel is navigated in the course of her voyage, or in the county where the voyage terminates; and when the offense is committed in this state on a railroad train or car prosecuting its trip, the jurisdiction is in any county through which the train or car passes in the course of her trip, or in the county where the trip terminates. [Amendment, approved January 28, 1876; Amendments 1875-6, 116; took effect sixtieth day after passage.]

784. Jurisdiction of criminal action.

SEC. 784. The jurisdiction of a criminal action:

1. For forcibly and without lawful authority seizing and confining another, or inveigling or kidnaping him, with intent, against his will, to cause him to be secretly confined or imprisoned in this state, or to be sent out of the state, or from one county to another, or to be sold as a slave, or in any way held to service; or,

2. For decoying, taking, or enticing away a child under the age of twelve years, with intent to detain and conceal it from its parent, guardian, or other person having the lawful charge of the child; or,

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