p. 391, declares "an indictment, by operation of law, for murder, is also an indictment for manslaughter, and every less offense that may be included under the charge of murder, as much as though it were charged in distinct and separate counts." Hence a conviction of manslaughter is an acquittal of every other offense of a higher grade charged or included in the charge in the indictment for murder; and so with all other offenses included within an indictment. See, as to "bar," People vs. Marsh, 6 Cal., p. 543; "variance," People vs. McNealy, 17 Cal., p. 332. Acquittal, by discharge of defendant, to be used as a witness.-People vs. Bruzzo, 24 Cal., p. 41. For pleas in “bar," "abatement,” “to jurisdiction," ""former conviction or acquittal," etc., see 1 Whart. Am. Cr. Law, pp. 337-354, et alia. INSANITY. Under the plea of not guilty, the insanity of the defendant, at the time of the killing, may be given in evidence.-See People vs. Olwell, 28 Cal., p. 461. In The People vs. Coffman, 24 Cal., p. 235, the Court say: "The unsoundness of mind, or insanity, that will constitute a defense in criminal actions is well described by Tindal, C. J." In answer to questions propounded by the House of Lords to the Judges, cited in Roscoe's Cr. Ev., p. 953, he says: "That to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature or quality of the act; or if he did know it, that he did not know he was doing what was wrong." There can be, say the Court, no question that in a criminal case, if the defendant relies upon insanity for his defense, the burden of proof is cast upon him, and that the allegation of insanity is an affirmative proposition which must be fully and clearly proved, in order to rebut the presumption of sanity. The instruction: "This defendant is presumed to be sane until the contrary is shown; and a doubt upon this question alone should not acquit, for insanity is an affirmative proposition, and should be made to appear beyond any reasonable doubt," was held to be correct. The evidence on this subject should be such, that were the question one of the sanity or insanity of the defendant, without reference to any other question or results, the verdict would be that the defendant was insane at the time he committed the act. This ruling was adhered to in the famous Laura D. Fair case, by Judge T. B. Reardon, sitting for Dwinelle, J., and may be said to be the fixed and settled rule in this State. The pre sumption of the law is that the defendant was sane till the contrary is shown by a preponderance of proof.—* People vs. Myers, 20 Cal., p. 518; see, also, People vs. March, 6 Cal., p. 543. The insanity of the defendant's parents may be shown when there appears to be no motive for the killing, or there is any evidence of the insanity of the defendant.-People vs. Smith, 31 Cal., p. 466. In The People vs. Farrell, 31 Cal., p. 579, where the defendant was indicted for rape, the Court say: "An act done by a person in a state of insanity cannot be punished as a public offense, nor can a person be tried, adjudged to punishment, or punished for a public offense while insane. The proceedings to be taken in such cases are pointed out by Chapter VI, Title X, Part II, of this Code, Secs. 1367-1373, post. The inquiry in these proceedings must be as to the present state of mind; but evidence before and after the commission of the act charged may be given.-1 Greenleaf Ev., p. 42. As often as any doubt of the sanity of the defendant exists the same proceedings may be had.-People vs. Farrell, supra; see, also, People vs. Moice, 15 Cal., p. 329; see, also, 1 Whart. Am. Cr. Law, pp. 55, 711, and notes. Habitual and not temporary or spasmodic insanity raises the legal presumption of its continuance.-People vs. Francis, 38 Cal., p. 183; People vs. Hobson, 17 Cal., p. 424. The evidence in cases where insanity is interposed as a defense should be examined with great care, lest an ingenious counterfeit be imposed upon the jury.-People vs. Dennis, 39 Cal., p. 637. DRUNKENNESS may be given in evidence, not as a defense, but to determine the state or condition of the mind, and its capacity to form an intention. In murder cases, its capacity for deliberation and premeditation aids the determination of the degree of guilt, (People vs. Nichol, 34 Cal., p. 212), in the instructions of the Court below, pronounced to be beyond criticism by the Sup. Court. Also, People vs. King, 27 Cal., p. 507, it was held not to go in extenuation or to afford an excuse for the offense, but to determine the degree. See, also, People vs. Harris, 29 Cal., p. 678; People vs. Belencia, 21 Cal., p. 554. Such evidence to be received with great caution, for a drunken man may act with premeditation as well as any other. See, also, People vs. Lewis, 36 Cal., p. 531. See, also, "Drunkenness," 1 Whart. Am. Cr. Law, Secs. 33, 37, 41, and notes. 1017. (§§ 299, 300.) Every plea must be oral, and entered upon the minutes of the Court in substantially the following form: 1. If the defendant plead guilty, "The defendant pleads that he is guilty of the offense charged in this indictment." 2. If he plead not guilty, "The defendant pleads that he is not guilty of the offense charged in this indictment." 3. If he plead a former conviction or acquittal, "The defendant pleads that he has already been convicted (or acquitted) of the offense charged in this indictment, by the judgment of the Court of — (naming it), rendered at (naming the place), on the of NOTE.-See note to preceding section. day 1018. (§§ 301, 302.) A plea of guilty can be put in by the defendant himself only in open Court, unless upon indictment against a corporation, in which case it may be put in by counsel. The Court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted. NOTE.-See note to Sec. 1016, ante. In New York, the plea of guilty can only be put in by the defendant in person, even to charges of misdemeanors, excepting only in cases of corporations. We regard our Code as sufficiently careful in this respect. Plea, how put in, and its form. Plea of guilty, how put in, and may be when it withdrawn. 1019. (§ 303.) The plea of not guilty puts in issue what plea every material allegation of the indictment. NOTE.-See note to Sec. 1016, ante. Under this plea insanity may be shown.-See People vs. Olwell, 28 Cal., p. 461. 1020. (§ 304.) All matters of fact tending to establish a defense other than that specified in the third subdivision of Section 1016 may be given evidence under the plea of not guilty. in NOTE.-See "Insanity," in note to Sec. 1016, ante; also, for what purposes drunkenness may be shown. of not guilty puts in issue. What may evidence be given in under plea of not guilty. What is not a former 1021. (§ 305.) If the defendant was formerly acquittal. acquitted on the ground of variance between the indictment and the proof, or the indictment was dismissed upon an objection to its form or substance, or in order to hold the defendant for a higher offense, without a judgment of acquittal, it is not an acquittal of the same offense. What is a former acquittal. Conviction or acquittal on an indictment offense, effect of. 1022. NOTE.-As to what variance entitles defendant to acquittal, see 1 Whart. Am. Cr. Law, Secs. 558, 559, and notes; see, also, note to Sec. 1016, ante. See Sec. 1112, post, as to dismissal of jury and holding defendant for higher offense. (§ 306.) Whenever the defendant is acquitted on the merits, he is acquitted of the same offense, notwithstanding any defect in form or substance in the indictment on which the trial was had. 1023. (§ 307.) When the defendant is convicted or acquitted upon an indictment, the conviction or for a higher acquittal is a bar to another indictment for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment. Defendant refusing to answer NOTE.-See note to Sec. 1016, ante, Subd. 3, under which the defense provided for in this and the preceding section must be entered. 1024. (§ 308.) If the defendant refuses to answer the indictment by demurrer or plea, a plea of not guilty to be guilty must be entered. plea of not entered. NOTE.-Stats. 1851, p. 212, et al. See People vs. King, 28 Cal., p. 265; People vs. Joselyn, 29 Cal., p. 562. 7106 1025: Nica Ece. 1874 CHAPTER V. TRANSMISSION OF CERTAIN INDICTMENTS FROM THE COUNTY SECTION 1028. Transmission of indictments from the County to District Courts. 1029. Indictments against a County Judge to be transmitted to District Court. 1030. Indictments to be transmitted to the Municipal Crim- sion of ments from 1874 the County 1028. (§ 309.) When an indictment is found in Transmis Ave? the County Court for treason, misprision of treason, indietmurder, or manslaughter, it must be transmitted by the Clerk to the District Court of the county for trial, except when the indictment is found against a person holding the office of District Judge. NOTE.-Stats. 1863, p. 158, Sec. 11. These offenses are only triable in the District Court by requirement of the Constitution; hence the provision for their removal. 1029. (§ 310.) All indictments found against a County Judge must also be transmitted to the District Court of the county for trial. to District ments Indict- Cur against a 1874 County NOTE.-Stats. 1863, p. 158, Sec. 12. For obvious District reasons this removal is necessary. Court. ments to be mitted to 1030. All indictments found in the County Court Indictof the City and County of San Francisco must be transtransmitted by the Clerk to the Municipal Criminal the Court of the City and County of San Francisco, except Court of those against the Judge of the last mentioned Court Francisco. and those triable in the District Court. NOTE.-Stats. 1870, p. 529, Sec. 12. Municipal San 44 |