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1. As a matter of right when the appeal is from a judgment imposing a fine only;

intervened: Ex parte Marks, 49 Id. 680; Ex parte Smallman, 54 Id. 35; Ex parte Marshall, 7 Pac. C. L. J. 724.

2. As a matter of discretion in all other cases. 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, Id. 552. In general, bail should not be al lowed pending appeal except where circumstances of an extraordinary character have

1273. Nature of bail.

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, 62 Cal. 490.

SEC. 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; Amendments 1875-6, 116; took effect sixtieth day after passage.]

Bail before conviction: Sec. 1271, note. Bail after conviction of felony: Sec. 1272, note.

Bail where judgment imposes fine only: Sec. 1272, note.

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 bail matter of discretion, notice of application to be given district attorney.

SEC. 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.

ARTICLE II.

BAIL UPON BEING HELD TO ANSWER BEFORE INDICTMENT.

1277. What magistrates may admit to bail.

SEC. 1277. When the defendant has been held to answer upon an examination for a public offense, the admission to bail may be by the magistrate by whom he is so held, or by any magistrate who has power to issue the writ of habeas corpus.

Bail on habeas corpus: See sec. 1286. After commitment, and where the bail of defendant has been fixed by the committing magistrate upon habeas corpus, the court or judge will not interfere to reduce the bail,

unless the bail demanded is per se unreasonably great, and clearly disproportionate to the offense charged: Ex parte Duncan, 54 Cal. 75; Ex parte Ryan, 44 Id. 555.

1278. Bail, how put in, and form of the undertaking.

SEC. 1278. Bail is put in by a written undertaking, executed by two sufficient sureties (with or without the defendant, in the discretion of the magistrate), and acknowledged before the court or magistrate, in substantially the following form:

An order having been made on the by A B, a justice of the peace of

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county (or as the case may be), that CD be held to answer upon a charge of (stating briefly the nature of the offense), upon which he has been admitted to bail in the sum of dollars; we, E F and G H (stating their place of residence and occupation), hereby undertake that the above-named C D will appear and answer the charge above mentioned, in whatever court it may be prosecuted, and will at all times hold himself amenable to the orders and process of the court, and if convicted, will appear for judgment and render himself in execution thereof, or if he fails to perform either of these conditions, that we will pay to the people of the state of California the sum of dollars (inserting the sum in which the defendant is admitted to bail).

Undertaking.-An undertaking for the appearance of defendant in the form prescribed by the above section, conditioned that defendant will appear and answer the charge in whatever court it may be prosecuted, applies to the bond to be given for appearance before a magistrate for examination: San Francisco v. Ran

dall, 54 Cal. 408. The undertaking need not state in what court the defendant shall appear, as the law provides in what court he shall be tried: People v. Carpenter, 7 Id. 402. Bail is a recognizance executed by the sureties; the accused need not sign it: People v. Love, 19 Id. 676; see also People v. Smith, 18 Id. 498.

1279. Qualifications of bail.

Sureties, liability of-The responsibility of the sureties attaches the moment defendant is released, and their liability is fixed by a breach of the conditions of the undertaking, and when a forfeiture is declared and entered by the proper court. The justification forms no part of the contract of the sureties, and in no manner affects their liability: People v. Penniman, 37 Cal. 271. The recital in the undertaking of the order admitting defendant to bail, and of the amount of bail, is conclusive upon the sureties: San Francisco v. Randall, 54 Id. 408.

SEC. 1279. The qualifications of bail are as follows:

1. Each of them must be a resident householder or freeholder within the state; but the court or magistrate may refuse to accept any person as bail who is not a resident of the county where bail is offered;

2. They must each be worth the amount specified in the undertaking, exclusive of property exempt from execution; but the court or magistrate, on taking bail, may allow more than two sureties to justify severally in amounts less than that expressed in the undertaking, if the whole justification be equivalent to that of sufficient bail.

Stats. 1855, 269, sec. 1.

1280. Bail, how to justify.

SEC. 1280. The bail must in all cases justify by affidavit taken before the magistrate that they each possess the qualifications provided in the preceding section. The magistrate may further examine the bail upon oath concerning their sufficiency, in such manner as he may deem proper.

Justification forms no part of the contract of the sureties, and in no manner affects their liability: People v. Penniman, 37 Cal. 271.

1281. On allowance of bail, defendant to be discharged.

SEC. 1281. Upon the allowance of bail and the execution of the undertaking, the magistrate must, if the defendant is in custody, make and sign an order for his discharge, upon the delivery of which to the proper officer the defendant must be discharged.

Surrender of defendant by sureties: Secs. 1268, note, 1300, note.

Arrest of defendant by sureties: Sec. 1301, note.

Release of defendant.-An oral order of the judge from the bench that the defendant

be released, certified by the clerk to the prisonkeeper, and followed by defendant's release, is a sufficient compliance with the section, and renders the undertaking obligatory: San Francisco v. Randall, 54 Cal. 408.

ARTICLE III.

BAIL UPON AN INDICTMENT BEFORE CONVICTION.

1284. When offense is not capital.

SEC. 1284. When the offense charged is not punishable with death, the officer serving the bench-warrant must, if required, take the defendant before a magistrate in the county in which it is issued, or in which he is arrested, for the purpose of giving bail. [Amendment, approved April 9, 1880; Amendments 1880, 26 (Ban. ed. 172); took effect immediately.]

Bail, where taken: See sec. 1268, note.

1285. When offense is capital.

SEC. 1285. If the offense charged is punishable with death, the officer arresting the defendant must deliver him into custody, according to the command of the bench-warrant. [Amendment, approved April 9, 1880; Amendments 1880, 26 (Ban. ed. 173); took effect immediately.]

1286. Bail on habeas corpus.

SEC. 1286. When the defendant is so delivered into custody, he must be held by the sheriff, unless admitted to bail on examination upon a writ of habeas corpus.

Offense not bailable: See sec. 1270.

'Bail on habeas corpus: Sec. 1277, and note. See Ex parte Strange, 59 Cal. 416, where

1287. Form of undertaking.

a man charged with murder was admitted to bail on habeas corpus.

SEC. 1287. The bail must be put in by a written undertaking, executed by two sufficient sureties (with or without the defendant, in the discretion of the court or magistrate), and acknowledged before the court or magistrate, in substantially the following form:

of

An indictment having been found on the

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day of, A. D. eighteen in the county court of the county of -, charging A B with the crime (designating it generally), and he having been admitted to bail in the sum of dollars, we, C D and E F, of (stating their place of residence and occupation), hereby undertake that the above-named A B will appear and answer the indictment above mentioned, in whatever court it may be prosecuted, and will at all times render himself amenable to the orders and process of the court, and if convicted, will appear for judgment and render himself in execution thereof; or, if he fails to perform either of these conditions, that we will pay to the people of the state of California the sum of dollars (inserting the sum in which the defendant is admitted to bail).

Undertaking: Sec. 1278, note.
Sureties: Sec. 1278, note.
Justification: Sec. 1280, note.

Approval.- No indorsement of approval of

the undertaking is necessary: People v. Penni man, 37 Cal. 271.

Action on forfeiture: Sec. 1306.

1288. Provisions applicable to bail after indictment.

SEC. 1288. The provisions contained in sections twelve hundred and seventynine, twelve hundred and eighty, and twelve hundred and eighty-one, in relation to bail before indictment, apply to bail after indictment. [Amendment, approved March 30, 1874; Amendments 1873-4, 450; took effect July 1, 1874.] 1289. Increase or reduction of bail.

SEC. 1289. After a defendant has been admitted to bail upon an indictment or information, the court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. If the amount be increased, the court may order the defendant to be committed to actual custody, unless he give bail in such increased amount. If application be made by the defendant for a reduction of the amount, notice of the application must be served upon the district attorney. [Amendment, approved April 9, 1880; Amendments 1880, 26 (Ban. ed. 173); took effect immediately.]

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SEC. 1291. In the cases in which defendant may be admitted to bail upon an appeal, the order admitting him to bail may be made by any n.agistrate having the power to issue a writ of habeas corpus, or by the magistrate before whom the trial was had. [Amendment, approved February 25, 1878; Amendments 1877-8, 122; took effect from passage.]

Stats. 1851, 212.

Bail on appeal: Sec. 1272, notes; Ex parte Voll, 41 Cal. 29; Ex parte Hoge, 48 Id. 3; Peo

ple v. Perdue, Id. 552; Ex parte Marks, 49 Id 680; Ex parte Smallman, 54 Id. 35; Éa par! Clarke, 6 Pac. C. L. J. 1014.

1292. Qualifications of bail and how put in, and condition of undertaking.

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SEC. 1292. The bail must possess the qualifications, and must be put in, in all respects, as provided in Article II. of this chapter, except that the undertaking must be conditioned as prescribed in section twelve hundred and seventy-three, for undertakings of bail on appeal.

ARTICLE V.

DEPOSIT INSTEAD OF BAIL.

1295. Deposit, when and how made.

SEC. 1295. The defendant, at any time after an order admitting him to bail, instead of giving bail may deposit with the clerk of the court in which he is held to answer the sum mentioned in the order, and upon delivering to the officer in whose custody he is a certificate of the deposit, he must be discharged from custody.

Return of deposit before forfeiture: Sec. 1302, post.

1296. Deposit after bail is given and before forfeiture.

SEC. 1296. If the defendant has given bail, he may, at any time before the forfeiture of the undertaking, in like manner deposit the sum mentioned in the recognizance, and upon the deposit being made, the bail is exonerated.

1297. Deposit to be applied to payment of judgment and fine.

SEC. 1297. When money has been deposited, if it remains on deposit at the time of a judgment for the payment of a fine, the county clerk must, under the direction of the court, apply the money in satisfaction thereof, and after satisfying the fine and costs, must refund the surplus, if any, to the defendant.

ARTICLE VI.

SURRENDER OF THE DEFENDANT.

1300. Surrender, by whom, when, and how made.

SEC. 1300. At any time before the forfeiture of their undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself, to the officer to whose custody he was committed at the time of giving bail, in the following manner:

1. A certified copy of the undertaking of the bail must be delivered to the officer, who must detain the defendant in his custody thereon as upon a commitment, and by a certificate in writing acknowledge the surrender;

2. Upon the undertaking and the certificate of the officer, the court in which the action or appeal is pending may, upon notice of five days to the district attorney of the county, with a copy of the undertaking and certificate, order that the bail be exonerated, and on filing the order and the papers used on the application, they are exonerated accordingly.

Surrender of defendant by bail: Sec. 1268, note.

1301. By whom defendant may be arrested for purpose of surrender.

SEC. 1301. For the purpose of surrendering the defendant, the bail, at any time before they are finally discharged, and at any place within the state, may themselves arrest him, or by a written authority, indorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so.

Bail may arrest defendant: Sec. 1268, note.

1302. On surrender, before forfeiture, money deposited to be refunded.

SEC. 1302. If money has been deposited instead of bail, and the defendant, at any time before the forfeiture thereof, surrenders himself to the officer to whom the commitment was directed, in the manner provided in the last two sections, the court must order a return of the deposit to the defendant, upon producing the certificate of the officer showing the surrender, and upon a notice of five days to the district attorney, with a copy of the certificate. Deposit instead of bail: Sec. 1295, ante.

ARTICLE VII.

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

1305. Forfeiture, in what cases, and how ordered.

SEO. 1305. If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes, and the undertaking of bail, or the money deposited instead of bail, as the case may be, is thereupon declared forfeited. But if at any time before the final adjournment of the court the defendant or his bail appear and satisfactorily excuse his neglect, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just.

1306. Forfeiture enforced by action.

SEC. 1306. If the forfeiture is not discharged, as provided in the last section, the district attorney may at any time after the adjournment of the court proceed by action only against the bail upon their undertaking.

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