NOTE.-Stats. 1855, p. 275. Removal of place of trial a matter over which the Court exercises a large discretion. If the Court be satisfied of the fact that the defendant cannot have a fair trial in the county, a change of venue should be granted.-People vs. Congleton, July Term, 1872 (No. 3382.) There is no limitation of time within which one who commits a murder, whether in the first or any less degree, must be prosecuted. It was not intended by graduating the punishment to change the offense against which the Statute of Limitation did not run.-People vs. Haun, July Term, 1872 (No. 3397.) Subd. 1.-Prisoner must be present the entire time which the trial of a felony consumes. Reading a deposition to the jury in the absence of the defendant, either before or after retiring, is error for which a new trial will be granted.-People vs. Kohler, 5 Cal., p. 72. Though the requirements of the Code providing the mode of trial in criminal cases should appear wholly immaterial, they ought, in justice to the defendant, to be complied with; a failure so to do subjects the people to the probability of a new trial. This view is sustained in The People vs. Arnold, 15 Cal., p. 476. Subd. 2.-This opening is a simple statement of the theory of the case and the circumstances attending it, as understood by the prosecution, under the discretion of the Court, and without argument or elaboration, and the introduction of the proofs deemed necessary to support the allegations of the indictment. See People vs. Williams, Oct. Term, 1872, given in Subd. 5, post. Subd. 3.-This is the same on the part of the defense that is indicated in the note supra for the people-giving the theory of the defense and the proofs supporting such theory or negativing the direct proofs of the people; and may consist in stating any defense adopted in the plea and the grounds thereof.-See People vs. Williams, Oct. Term, 1872, and cases cited in note to Subd. 5, post. Subd. 4.-As examples of cases wherein the Court should allow the introduction of other testimony: 1. When surprised by the introduction of witnesses other than those indorsed on the indictment; and 2. When the Court strikes out testimony already given upon which the defense relied.-People vs. Freeland, 6 Cal., p. 96; People vs. Bealoba, 17 Cal., p. 389. Rebutting testimony.-See People vs. Kelly, 28 Cal., p. 423; People vs. Henderson, 28 id., 1. 465. See, also, cases cited in note to Sec. 1102, post. Subd. 5.-Courts may limit counsel to a proper and reasonable consumption of time in presenting cases to juries. This discretion, which is necessarily large, should be carefully, if at all, exercised in capital cases, and only then under extraordinary circumstances.— People vs. Keenan, 13 Cal., p. 581. Such limitation of time must in no case deprive the defendant of an opportunity to present his full defense.-Id. It is error to disallow the reading of law to the jury by counsel in the way of illustration, when it is so stated, and in deference to the instructions of the Court as to what the law is.-People vs. Anderson, July Term, 1872 (No. 2655). The Court correctly refused to allow the prisoner's counsel to make his argument upon the case made by the prosecution, in opening the case of the prisoner. The argument is to be made when the evidence is concluded.-People vs. Williams (No. 2883), April Term, 1872, Sup. Ct. Cal. Subd. 6.-It is proper to preface this note by stating that prior to 1855 this subdivision read: "The Court shall then charge the jury, if requested by either party." May 7th, 1855, it was amended by inserting the words "in writing," in the sentence. It is here allowed to be orally given, by mutual consent. The Judge, under this section, "may state the testimony" to the jury; and this may be done at their request on returning into Court for that purpose.-People vs. Ybarra, 17 Cal., p. 169. And, when it is done, it is presumed to have been done properly in the absence of any showing to the contrary. To "state the testimony" is a constitutional provision.-Const., Art. VI, Sec. 17. But to do more, such as to state that "if the evidence of one of the witnesses was true, the defendants were guilty of the offense charged,” as was done in People vs. Ah Fung, et al., 16 Cal., p. 137, is error; and it was so held in the case of Ybarra, supra, by the Court in commenting on that case, where it appears to have been admitted that there was no controversy on the point.-See instructions in murder case, People vs. Williams, Oct. Term, 1872, on capacity to deliberate. It is not such irregularity as to authorize a new trial for a Judge, other than the one who tried the case, by consent to charge the jury and receive the verdict.-People vs. Henderson, 28 Cal., p. 471. Nor is it such error for the Judge of the district to resume his seat and pass upon a motion without objection.-Id. The presumption is always that the Judge's charge is in writing, unless the contrary appears.-People vs. Shuler, 28 Cal., p. 496; People vs. Chung Lit, 17 Cal., p. 322; People vs. Garcia, 25 Cal., p. 531. Contradictory instructions not tolerated.-People vs. Valencia, Oct. ORAL INSTRUCTIONS.-For fifteen years, and in all 1094. (§ 363.) When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the Court, the order scribed in the last section may be departed from. pre NOTE.-Stats. 1854, p. 81, Sec. 4. See note to Sec. 1095, post. The first proof of the Penal Code prepared Number of counsel who may argue the case to the jury. by the Commission gave the close of the argument to the defense. This gave rise to opposition and discussion, one of the Commission favoring the section as it here stands, with a section requiring the "law officer" of the people, the District Attorney, in "propria persona," to close, in all cases where there was paid counsel assisting the prosecution; but since the control of this matter of opening and closing was within the sound discretion of the Court in all cases, it was finally concluded to leave the statute in this respect unchanged, believing that in all proper cases this power of the Court would be exercised, and not left a dead letter. Encouragement for this hope is founded in the case of The People vs. Butler, 8 Cal., p. 435, where Burnett, J. (Field, J., concurring), holds the following language: "The State never asks anything but justice. On the part of the State the prosecution is but a fair and just inquiry into the guilt or innocence of the accused. She can have no interest in convicting the innocent or in releasing the guilty. She stands perfectly impartial as between the community and the individual. Prose cuting attorneys should, therefore, do their duty faithfully, but no more. They should never act as employed counsel. No advantage should be taken of temporary public excitement against the prisoner, or of any prejudice against him arising from any cause whatever. And if such attempts are made, the Court before whom the prisoner is tried should put a stop to them." 1095. (§ 364.) If the indictment is for an offense punishable with death, two counsel on each side may argue the cause to the jury. If it is for any other offense, the Court may, in its discretion, restrict the argument to one counsel on each side. NOTE. This section, before the adoption of the Codes, after the word "jury," at end of first sentence, read as follows: "in which case they must do so alternately." The recent famous case of Laura D. Fair, on the construction of this original section, as also upon other points, was appealed to the Supreme Court, and the Court, in an able and elaborate opinion, decided, at the October Term, 1872, that the beginning of the argument must be determined under the two preceding sections, and that "by whomsoever begun, it should proceed by alternation between the counsel engaged," and concluding also, that one side should open and the other close the argument. It was also determined under the language of this original section left undisturbed, that presumed until the 1096. (§ 365.) A defendant in a criminal action Defendant is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. NOTE.-See" Presumption," note to Sec. 1102, post, BENEFIT OF DOUBT.-The defendant is entitled to cases. * a 1097. (§ 366.) When it appears that the defendant has committed a public offense, and there is reasonable ground of doubt in which of two or more innocent contrary is proved. Reasonable doubt. When reasonable doubt as to degree, he can be convicted only of lowest. |