PART II. OF CRIMINAL PROCEDURE. PRELIMINARY PROVISIONS. SECTION 681. No person punishable but on legal conviction. 682. Public offenses, how prosecuted. 683. Criminal action defined. 684. Parties to a criminal action. 685. The party prosecuted known as defendant. 686. Rights of defendant in a criminal action. 687. Second prosecution for the same offense prohibited. 689. No person to be convicted but upon verdict or judgment. punishable 681. (§ 6.) No person can be punished for a pub- No person lic offense, except upon a legal conviction in a Court but on legal having jurisdiction thereof. NOTE.-The rights of persons charged with crime are secured to them by Sec. 8, Art. I, State Const., and note in Appendix to the Political Code Cal., Vol. II, pp. 380, 381, 382. Convictions are the legal proceedings of record which ascertain the guilt of parties, and upon which the sentences or judgments are founded.— Bouv. Law Dict., Vol. I, p. 362. 1 Bishop Crim. Law, Sec. 223, defines conviction to be the finding a person guilty by verdict of a jury. Under the Constitution and Code convictions may be had: 1. By the verdict of a jury; 2. On confession of guilt by the defendant; 3. By the judgment of an authorized Court in certain cases determining the guilt of the defendant without confession or the verdict of a jury-denominated summary convictions.-See Sec. 689, post. The first two are com conviction. Public offenses, how prosecuted Criminal action defined. Parties to a criminal action. The party mon law convictions, as well as statutory; the latter is statutory only, and when authorized under the Constitution the statute providing for it must be strictly pursued. When the Code provides for sentence it must be preceded by a conviction.-1 Caines N. Y., p. 72; 34 Maine, p. 594; 16 Ark., p. 601. Sentence does not always follow conviction.-14 Pick., p. 88; 17 id., p. 296; 8 Wend., p. 204; 4 Ill., p. 76. In summary convictions jurisdictional and all other essential statutory proceedings must affirmatively appear.-1 Burr., p. 613; 19 Johns. N. Y., p. 39; 14 Mass., p. 224; 10 Metc., p. 222; 7 Barb., p. 462; . 2 Yeates, Penn., p. 475; 3 Maine, p. 51; Johns., p. 292. See Index, "Judgment," sections and notes there referred to. 682. (§ 7.) Every public offense must be prosecuted by indictment, except: 1. Where proceedings are had for the removal of civil officers of the State. 2. Offenses arising in the milit'a when in actual service, and in the land and naval forces in time of war, or which this State may keep, with the consent of Congress, in time of peace. 3. Offenses tried in Justices' and Police Courts. NOTE.-See note to preceding section, and Art. I, Sec. 8, State Const., and references in note thereto; App. Pol. Code, vol. 2, p. 380. 683. (§ 8.) The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action. 684. (§ 9.) A criminal action is prosecuted in the name of the people of the State of California, as a party, against the person charged with the offense. 685. (§ 10.) The party prosecuted in a criminal known as action is designated in this Code as the defendant. prosecuted defendant. Rights of defendant in a criminal action. 686. (§ 11.) In a criminal action the defendant is entitled: 1. To a speedy and public trial. 2. To be allowed counsel as in civil actions, or to appear and defend in person and with counsel. 3. To produce witnesses on his behalf, and to be Same. confronted with the witnesses against him, in the presence of the Court, except that where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness; or where the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally in the like manner in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, the deposition of such witness may be read, upon its being satisfactorily shown to the Court that he is dead or insane, or cannot with due diligence be found within the State. NOTE.-See notes to Sec. 681, ante, and 689, post. prosecution 687. (§ 12.) No person can be subjected to a Second second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted. nor 688. (§ 13.) No person can be compelled, in a criminal action, to be a witness against himself; 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. NOTE. He may testify in his own behalf.-See notes to Sec. 681, ante, and 689, post. for the offense, same prohibited. No person witness himself in to be a against a criminal action, or to be unneces sarily restrained. to be but upon 689. (§ 14.) No person can be convicted of a pub- No person lic offense unless by the verdict of a jury, accepted convicted and recorded by the Court, or upon a plea of guilty, verdictor or upon judgment against him upon a demurrer to the indictment, in the case mentioned in Section 1011, or upon a judgment of a Police or Justice's Court, a jury having been waived. NOTE.-If a defendant does not plead when he has an opportunity, judgment may be pronounced against him.-Sec. 1011, post; see People vs. King, 28 Cal., p. 265; People vs. Joselyn, 29 Cal., p. 562. 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 provide 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 without 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.-See Sec. 1323, post, and note. TITLE I. OF THE PREVENTION OF PUBLIC OFFENSES. CHAPTER I. Of lawful resistance. II. Of the intervention of the officers of III. Security to keep the peace. IV. Police in cities and towns, and their V. Suppression of riots. CHAPTER I. OF LAWFUL RESISTANCE. SECTION 692. Lawful resistance, by whom made. 693. By the party, in what cases and to what extent. 694. By other parties, in what cases. 692. (§ 15.) Lawful resistance to the commission Lawful of a public offense may be made: 1. By the party about to be injured; 2. By other parties. NOTE.-See "Personal Rights," Civil Code Cal., vol. 1, pp. 23-26, Secs. 43-50, and notes; "What force may be used to protect whom," id., Sec. 50. 693. (§ 16.) 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. NOTE.-See "Force in resistance," Sec. 50, Civil Code. 694. (§ 17.) Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense. resistance, by whom made. |