Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

CHAPTER VII.

COMPROMISING CERTAIN PUBLIC OFFENSES BY LEAVE OF THE COURT.

§ 1377. Compromise of offenses for which civil action may be had. § 1378. Compromise by permission of the court bars another pros ecution.

§ 1379. No public offense to be compromised except.

1377. When a defendant is held to answer on a charge of misdemeanor, for which the person injured by the act constituting the offense has a remedy by civil action, the offense may be compromised as provided in the next section, except when it is committed:

1. By or upon an officer of justice, while in the execution of the duties of his office.

2. Riotously.

3. With an intent to commit a felony.

Where an offense is a personal tort, and there is no attempt to suppress the prosecution, it may be compromised-50 Ga. 155. The bare taking of one's goods back again or receiving reparation is no offense -5 N. H. 553. Where money is paid for the purpose of reimbursing for expenses, as, for search of stolen property-16 Ill. 94; 51 id. 234; or, for the purpose of settling the matter, there being no prosecution set on foot, and no agreement not to prosecute, is not compounding the offense-9 Wis. 476.

1378. If the party injured appears before the court to which the depositions are required to be returned, at any time before trial, and acknowledges that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom; but in such case the reasons for the order must be set forth therein, and entered on the minutes. The order is a bar to another prosecution for the same offense.

The consent of the court cannot make an agreement to abandon a prosecution valid, if it would be otherwise unlawful-6 Q. B. 308; S. C. 2 Lead. C. C. 216.

1379. No public offense can be compromised, nor can any proceeding or prosecution for the punishment thereof upon a compromise be stayed, except as provided in this chapter.

There can be no compromise of a criminal charge where the party is arrested, or in any way held to answer-6 Oreg. 308; and neither an officer or a witness possesses the power to compromise a felony-1 Wyo. 277. An offense which, in the discretion of the court, may be punished by imprisonment in the penitentiary cannot be compromised-39 Ga. 85. See Desty's Crim. Law, §§ 10, 74 d.

CHAPTER VIII.

DISMISSAL OF THE ACTION BEFORE OR AFTER INDICTMENT

.FOR WANT OF PROSECUTION OR OTHERWISE.

§ 1382. When action may be dismissed.

§ 1383. Continuance and discharge from custody.

§ 1384.

If action dismissed, defendant to be discharged, etc.

§ 1385. Dismissed on motion of court or application of district attorney.

§ 1386. Nolle prosequi abolished.

§ 1387. Dismissal a bar in misdemeanor, but not in felony.

1382. The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases:

1. Where a person has been held to answer for a public offense, if an indictment is not found or an information filed against him, within thirty days thereafter.

2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment, or filing of the information. [In effect April 9th, 1880.]

Dismissal.-The dismissal is in the nature of a nonsuit-54 Cal. 413. Upon such dismissal the power of the court to resubmit ceases-54 Cal. 413, explaining 52 id. 463. An application for dismissal must be made, in the first place, to the court where the prosecution is pending-54 Cal. 101. When the grand jury has dismissed a charge, the court may dismiss the action and discharge defendant from custody, and discharge the sureties from the bond, unless it has reason to believe the grand jury, at a succeeding term, may properly indict him-54 Cal. 413. See ante, § 941.

1383. If the defendant is not charged or tried as provided in the last section, and sufficient reason therefor is shown, the court may order the action to be continued from time to time, and in the mean time may discharge the defendant from custody on his own undertaking of bail for his appearance to answer the charge at the time to which the action is continued. [In effect April 9th, 1880.]

[ocr errors]

See 54 Cal. 413; ante, § 942.

1384. If the court directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom; or if admitted to bail, his bail is exonerated, or money deposited instead of bail must be refunded to him.

See 54 Cal. 414.

1385. The court may, either of its own motion or upon the application of the district attorney, and in furtherance of justice, order an action or indictment to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes.

Dismissal of action.-The discharge must be at the trial, before the defendant has gone into his defense, and by the court, of its own mo tion, or on application of the district attorney-48 Cal. 253. Defendant cannot be discharged from the indictment without trial, except in the cases provided by statute-48 Cal. 253.

1386. The entry of a nolle prosequi is abolished, and neither the attorney-general nor the district attorney can discontinue or abandon a prosecution for a public offense, except as provided in the last section.

1387. An order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor; but it is not a bar if the offense is a felony.

Dismissal a bar.-The dismissal is a bar in misdemeanors, but not in felonies. He may be again examined before a magistrate, and held for the same offense-52 Cal. 464; 54 id. 412. See ante, JEOPARDY, p. 17.

1388. Final judgment may be suspended on any conviction, charge, or prosecution for misdemeanor or felony, where in the judgment of the court in which such

proceeding is pending there is a reasonable ground to believe that such minor may be reformed, and that a commitment to prison would work manifest injury in the premises. Such suspension may be for as long a period as the circumstances of the case may seem to warrant, and subject to the following further provisions: During the period of such suspension, or of any extension thereof, the court or judge may, under such limitations as may seem advisable, commit such minor to the custody of the officers or managers of any strictly non-sectarian charitable corporation conducted for the purpose of reclaiming criminal minors. Such corporation, by its officers or managers, may accept the custody of such minor for a period of two months (to be further extended by the court or judge should it be deemed advisable), and should said minor be found incorrigible and incapable of reformation, he may be returned before the court for final judgment for his misdemeanor. Such charitable corporation shall accept custody of said minor as aforesaid, upon the distinct agreement that it and its officers shall use all reasonable means to effect the reformation of such minor, and provide him with a home and instruction. No application for guardianship of such minor by any person, parent, or friend shall be entertained by any court during the period of such suspension and custody, save upon recommendation of the court before which the criminal proceedings are pending first obtained. Such court may further, in its discretion, direct the payment of the expenses of the maintenance of such minor during such period of two months, not to exceed, in the aggregate, the sum of $25 (twenty-five dollars), which sum shall include board, clothing, transportation, and all other expenses, to be paid by the county where such criminal proceeding is pending, or direct action to be instituted for the recovery thereof out of the estate of said minor, or from his parents. Such court may also revoke such order of suspension at any time. [Approved March 15th, 1883.]

CHAPTER IX.

PROCEEDINGS AGAINST CORPORATIONS.

$1390. Summons upon information against corporation.

§ 1391.

Form of summons.

§ 1392. When and how served.

§ 1393. Examination of the charge.

1394. Certificate of magistrate and return of depositions. § 1395. Grand jury to investigate if there is sufficient cause § 1396. Appearance and plea.

[blocks in formation]

1390. Upon an information or presentment against a corporation, the magistrate must issue a summons signed by him, with his name of office, requiring the corporation to appear before him, at a specified time and place, to answer the charge, the time to be not less than ten days after the issuing of the summons.

1391. The summons must be substantially in the following form:

"COUNTY OF (as the case may be).

"The People of the State of California to the (naming the corporation):

"You are hereby summoned to appear before me at (naming the place), on (specifying the day and hour), to answer a charge made against you upon the information of A. B. (or the presentment of the grand jury of the county, as the case may be), for (designating the offense generally).

[ocr errors]

"Dated at the city (or township) of this of, eighteen

day

"G. H., Justice of the Peace" (or as the case may be). 1392. The summons must be served at least five days before the day of appearance fixed therein, by delivering a copy thereof and showing the original to the president

« ΠροηγούμενηΣυνέχεια »