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1035. Application, when granted.

SEC. 1035. If the court is satisfied that the representation of the defendant is true, an order must be made for the removal of the action to the

of a county free from a like objection.

Stats. 1863, 158, sec. 14.

1036. Order of removal.

proper court

SEC. 1036. The order of removal must be entered upon the minutes, and the clerk must immediately make out and transmit to the court to which the action is removed a certified copy of the order of removal, record, pleadings, and proceedings in the action, including the undertakings for the appearance of the defendant and of the witnesses.

1037. Proceedings on removal, if defendant is in custody.

SEC. 1037. If the defendant is in custody, the order must direct his removal, and he must be forthwith removed by the sheriff of the county where he is imprisoned, to the custody of the sheriff of the county to which the action is removed.

1038. Authority of court to which action is removed.

SEC. 1038. The court to which the action is removed must proceed to trial and judgment therein as if the action had been commenced in such court. If it is necessary to have any of the original pleadings or other papers before such court, the court from which the action is removed must at any time, upon application of the district attorney or the defendant, order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being retained. Second arraignment, when venue is changed. Where a defendant has been once arraigned, and subsequently the place of trial

1041. Issue of fact defined.

is changed, it is unnecessary to repeat the ar raignment: Davis v. State, 39 Md. 384.

CHAPTER VII.

THE MODE OF TRIAL.

SEC. 1041. An issue of fact arises:

1. Upon a plea of not guilty;

2. Upon a plea of a former conviction or acquittal of the same offense; 3. Upon a plea of once in jeopardy. [Amendment, approved April 26, 1880; Amendments 1880, 45 (Ban. ed. 522); took effect from passage.]

1042. Issue of fact, how tried.

SEC. 1042. Issues of fact must be tried by jury, unless a trial by jury be waived in criminal cases not amounting to felony, by the consent of both parties expressed in open court and entered in its minutes. In cases of misde

meanor the jury may consist of twelve, or any number less than twelve upon which the parties may agree in open court. [Amendment, approved February 25, 1880; Amendments 1880, 4 (Ban. ed. 9); took effect immediately.]

Trial by jury. In all criminal cases amount ing to a felony there must be a trial by a jury of twelve men. The defendant cannot consent to be tried by a less number: Const., art. 1, sec. 7; People v. Scoggins, 37 Cal. 676; People V. Russell, 46 Id. 121; People v. O'Neil, 48 Id. 257. In cases of misdemeanor, the jury may consist of twelve, or of any number less than twelve upon which the parties may agree in open court: Const., art. 2, sec. 7. The action PEN. CODE-15

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of a police magistrate in committing a minor child to an industrial school for his training and reformation is not a criminal prosecution which entitles such minor to a jury trial: Ex parte Ah Peen, 51 Cal. 280. Aliens accused of crime are not entitled to be tried by a jury composed of one half aliens: People v. Chin Mook Sow, Id. 597.

Issue of fact defined: Code Civ. Proc., sec.

590.

1043. When presence of defendant is necessary on the trial.

SEC. 1043. If the prosecution be for a felony, the defendant must be personally present at the trial; but if for misdemeanor, the trial may be had in the absence of the defendant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the district attorney by an order or warrant, require the personal attendance of the defendant at the trial. [Amendment, approved April 9, 1880; Amendments 1880, 19 (Ban. ed. 165); took effect immediately.]

Personal attendance at trial. —In all cases amounting to a felony the defendant must be personally present during the whole of his trial: People v. Kohler, 5 Cal. 72; People v. Higgins, 59 Id. 357. If, pending a trial for grand larceny, the defendant flees and cannot be found, the jury may be discharged and no jeopardy attaches: Id. During the progress of the trial the defendant is in the custody of the court and under the immediate control of and subject to the orders of the court: People v. Harrington, 42 Id. 168. Viewing the premises, by the jury, where the offense is alleged to have been committed is not a portion of the trial at which the defendant must be present: People v. Bonney, 19 Id. 426. The mere fact that the

record on appeal recites that the defendant was absent during a portion of the trial (for murder) is not sufficient to justify a reversal of the judgment: People v. Bealoba, 17 Id. 389. The defendant must be present when the verdict is rendered, and the court, in all trials for felonies, should promptly order him into actual custody at the commencement of the trial, or immediately upon the retirement of the jury to consider their verdict, regardless of his previous admission to bail: People v. Beauchamp, 49 Id. 41. On the trial of misdemeanors the defendant need not be present, either personally or by attorney: People v. Ebner, 23 Id. 159; People v. Budd, 57 Id. 349; Warren v. State, 19 Ark. 214; State v. Reckards, 21 Minn. 47.

CHAPTER VIII.

FORMATION OF THE TRIAL JURY AND THE CALENDAR OF ISSUES FOR TRIAL. 1046. Formation of trial jury.

SEC. 1046. Trial juries for criminal actions are formed in the same manner as trial juries in civil actions.

Forming juries in criminal actions.-The object of this section is to adopt the same general plan in forming juries in criminal actions as prevails in civil actions subject to such modifications as may be made by other sections of this code: People v. Scoggins, 37 Cal. 676.

1047. Clerk to prepare a calendar.

Impaneling trial juries: Secs. 246, 247, Code Civ. Proc.

Formation of jury: Secs. 600-604, Code Civ. Proc.

Qualifications and exemptions of jurors: Secs. 198-201, Code Civ. Proc.

SEC. 1047. The clerk must keep a calendar of all criminal actions pending in the court, enumerating them according to the date of the filing of the indictment or information, specifying opposite the title of each action whether it is for a felony or a misdemeanor, and whether the defendant is in custody or on bail. [Amendment, approved April 9, 1880; Amendments 1880, 20 (Ban. ed. 166); took effect immediately.]

1048. Order of disposing of issues on the calendar.

SEC. 1048. The issues on the calendar must be disposed of in the following order, unless for good cause the court shall direct an action to be tried out of its order:

1. Prosecutions for felony, when the defendant is in custody;

2. Prosecutions for misdemeanor, when the defendant is in custody;

3. Prosecutions for felony, when the defendant is on bail;

4. Prosecutions for misdemeanor, when the defendant is on bail. [Amendment, approved April 9, 1880; Amendments 1880, 20 (Ban. ed. 166); took effect immediately.]

1049. Defendant entitled to two days to prepare for trial.

SEC. 1049. After his plea, the defendant is entitled to at least two days to prepare for trial.

CHAPTER IX.

POSTPONEMENT OF THE TRIAL.

1052. Postponement, when and how ordered.

SEC. 1052. When an action is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day. [Amendment, approved April 9, 1880; Amendments 1880, 20 (Ban. ed. 166); took effect immediately.]

The amendment omitted, after the word "day," "of the same or next term."

ance:

Continuance, granting or refusing discretionary." Postponed' is here, and in fact throughout the codes, used in the place of 'continued,' and 'postponement' for 'continu"" Commissioners' note. Applications for the postponement of the trial of an action are addressed largely to the discretion of the trial court, and its decision upon such motion will not be disturbed on appeal, unless there has been a gross abuse of such discretion: People v. Gaunt, 23 Cal. 157; People v. Williams, 24 Id. 31; People v. Jocelyn, 29 Id. 562. If the facts show the application to be made in bad faith, the court is justified in denying the motion: People v. Mortimer, 46 Id. 114.

Affidavits, what must contain.-When a motion for a continuance is made on the ground of the absence of a material witness, it should appear by affidavit that the testimony of such witness is not cumulative, and that the facts sought to be proved by him cannot be proved by any other witness within the reach of the process of the court; that his testimony is material, and that due diligence has been used to obtain it, setting forth the character of the diligence that has been used, whether by exhausting the process of the court, or otherwise. The facts which such witness will testify to should also be set out, to enable the court to judge of their materiality: People v. Baker, 1 Cal. 403; People v. Thompson, 4 Id. 241; People v. Diaz, 6 Id. 248; People v. Quincy, 8 Id. 89; People v. Gaunt, 23 Id. 156; People v. Williams, 24 Id. 31; People v. Jocelyn, 29 Id. 562; People v. Francis, 38 Id. 183; People v. Mellon, 40 Id. 648; People v. Ashnauer, 47 Id. 98; People v. Ah Fat, 48 Id. 63. That due diligence to procure the attendance of the witness has been used, see People v. Jenkins, 56 Id. 4. Facts also should be set out from which the court can judge whether there is reasonable ground to believe that the attendance of the absent witness or his testimony can be pro

cured at a future day: People v. Francis, supra, People v. Ashnauer, supra; People v. Ah Fat, supra. It should also appear that the absent witness cannot be readily reached by attachment: People v. Weaver, 47 Id. 106. If the testimony of the absent witness would be no defense to the action, the motion should be denied: People v. Williams, 43 Id. 344. On motion for a new trial on the ground of error in denying a motion for a continuance, the affidavits of the absent witnesses should be obtained showing that they will testify to the facts sought to be proved, or good reason should be shown for not obtaining such affidavits: People v. De Lacey, 28 Id. 589; People v. Jocelyn, 29 Id. 562. For a sufficient affidavit for continuance by the district attorney, see People v. Gannon, 61 Id. 476.

Counsel, sickness of, sufficient ground for a continuance: People v. Logan, 4 Cal. 188; see Lightner v. Menzel, 35 Id. 452.

Absence of witness for the defense is not sufficient ground for a continuance, when that which is expected to be proved by him is admitted by the district attorney, and where the witness is produced at the trial: People v. Brown, 59 Cal. 345.

In criminal actions, it is the policy of the law to allow the defendant to have his witnesses personally present at the trial, if they can be obtained without unreasonable delay, and a motion on his part for a continuance on account of absent witnesses, it appearing that their testimony is material, and that due diligence has been used to obtain it, but without success, should be granted, particularly if it be the first application: People v. Diaz, 6 Cal. 248; People v. Dodge, 28 Id. 445; People v. McCrory, 41 Id. 458.

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So a continuance was properly refused where it did not seem that the attendance of the alleged absent witness could have been procured in a reasonable time: People v. Lewis, 64 Cal. 401; citing People v. Cleveland, 49 Id. 580; People v. Ah Yute, 53 Id. 613.

TITLE VII.

OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT.

CHAPTER I.

CHALLENGING THE JURY...

1055

II. THE TRIAL....

1093

III.

CONDUCT OF THE JURY AFTER CAUSE IS SUBMITTED TO THEM.. 1135

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CHALLENGING THE JURY.

1055. Definition and division of challenges.

SEO. 1055. A challenge is an objection made to the trial jurors, and is of two kinds:

1. To the panel;

2. To an individual juror.

Challenge, what constitutes.-A defendant exercising his right to challenge is bound to designate, in some way, the objection upon which he intends to rely. He is not permitted to interpose a challenge of such an indefinite character that it cannot be ascertained upon what particular ground it is taken. Unless the cause be alleged, the challenge may be disregarded by the court: People v. Renfrow, 41 Cal. 37; People v. Dick, 37 Id. 277; People v. Reynolds, 16 Id. 128.

Court may excuse jurors.-The court may of its own motion, for any good reason, excuse a qualified juror from sitting on the panel in a criminal case; and this will not be error, if the defendant is tried by a jury of lawful men. The defendant is entitled to a lawful jury, but is not entitled, as a matter of absolute right, to have the first juror who is called, and who possesses all the statutory qualifications, sit in his case: People v. Arceo, 32 Cal. 40.

1056. Defendants cannot sever in challenges.

SEC. 1056. When several defendants are tried together they cannot sever their challenges, but must join therein.

Defendants tried jointly: See People v. McCalla, 8 Cal. 301.

1057. Panel defined.

SEC. 1057. The panel is a list of jurors returned by a sheriff, to serve at a particular court or for the trial of a particular action.

Selecting and returning jurors: Code Civ. Summoning jurors: Code Civ. Proc., 225Proc., secs. 204-211.

Drawing jurors: Code Civ. Proc., 214-220.

1058. Challenge to the jury defined.

228.

SEO. 1058. A challenge to the panel is an objection made to all the jurors returned, and may be taken by either party.

1059. Upon what founded.

SEC. 1059. A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury in civil actions, or on the intentional omission of the sheriff to summon one or more of the jurors drawn.

Challenge to the panel.-On the trial of a challenge to the panel the defendant cannot offer his ex parte affidavit in support of the challenge: People v. Brown, 48 Cal. 253.

Where but twenty-seven jurors, of thirty-six ordered to be summoned on a special venire, appeared, and the court caused the names of these twenty-seven to be placed in the box, it

was held not to be a ground of challenge by
defendant to the panel that the names of the
jurors who did not appear were omitted from
the box: People v. Stuart, 4 Id. 218. Nor is it
a good ground of challenge that the venire is
special, and that there was no general venire
drawn: People v. Vance, 21 Id. 400; People v.
Stuart, supra.
There is but one ground of
challenge to a special venire, and that is speci-
fied in section 1064; People v. Welch, 49 Id.
174; see also People v. Ah Chung, 54 Id. 398;
People v. Rodriguez, 10 Id. 50.

1060. When and how taken.

Challenge to panel properly disallowed: People v. Ah Fook, 64 Cal. 379, 382; People v. Darr, 61 Id. 554.

"Challenges to the panel were formerly challenges to the array: 1. Principal challenge to the array; 2. Challenge to the array for favor; of which, see Am. Crim. L., 3 Whart., pp. 425, 426, secs. 2947-2953, and notes. The statutory challenge to the panel is based on a departure from the statute providing for the drawing, or an omission to summon the jury as required: See note to sec. 1046, ante:" Commissioners' note.

SEC. 1060. A challenge to the panel must be taken before a juror is sworn, and must be in writing or be noted by the phonographic reporter, and must plainly and distinctly state the facts constituting the ground of challenge. Specifying grounds.-A challenge to a upon any ground specified in the code, in Peopanel of jurors summoned from the by-standers ple v. Darr, 61 Cal. 554. was properly disallowed, it not being based

1061. If sufficiency of challenge denied, adverse party may except-Exception. SEC. 1061. If the sufficiency of the facts alleged as ground of the challenge is denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered on the minutes of the court, or of the phonographic reporter, and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true. Compare with section 1077.

Exception to ruling: Sec. 1170.

1062. If exception overruled, court may allow denial, etc.

SEC. 1062. If, on the exception, the court finds the challenge sufficient, it may, if justice requires it, permit the party excepting to withdraw his exception, and to deny the facts alleged in the challenge. If the exception is allowed, the court may, in like manner, permit an amendment of the challenge. Amended challenge.- Where an amended substitute for the original: People v. Brown, challenge to the panel is allowed, it becomes a 48 Cal. 253.

1063. Denial of challenge, how made, and trial thereof.

SEC. 1063. If the challenge is denied, the denial may be oral, and must be entered on the minutes of the court, or of the phonographic reporter, and the court must proceed to try the question of fact; and upon such trial, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge.

challenge, make it evidence of the facts averred in the statement. The challenge is the pleading; its averments must be proved by legal evidence: People v. Brown, 48 ̊ Cal. 256.

Evidence on trial of challenge.-A witness cannot substitute his ex parte affidavit for an oral examination and cross-examination; nor can a defendant, by incorporating his own affidavit into his statement of the grounds of a 1064. Challenge when jury summoned but not drawn, for bias in summoning officer. SEC. 1064. When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel' on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner, as if made to a juror.

Challenge sufficient, when.-Where the sheriff who summoned the special panel is sworn and examined, and by his testimony discloses that he has formed or expressed an opinion that defendant is guilty, the challenge to

the panel on the ground of the bias of the sheriff should be allowed: People v. Coyodo, 40 Cal. 592; see also People v. Welch, 49 Id. 174; People v. Rodriguez. 10 Id. 50.

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