by such other evidence as shall tend to convict the de- * In The People vs. Ames, 39 Cal., p. 403, says Justice evidence higher offense than charged, to be had 1112. (§§ 379, 380.) If it appears by the testi- If the mony that the facts proved constitute an offense of a show higher nature than that charged in the indictment, the the Court may direct the jury to be discharged, and proceedings all proceedings on the indictment to be suspended, thereon. and may order the defendant to be committed or continued on, or admitted to bail to answer any indictment which may be found against him for the higher offense. If an indictment for the higher offense is found by a Grand Jury impaneled within a year next thereafter, he must be tried thereon, and a plea of former acquittal to such last found indictment is not Court may discharge sustained by the fact of the discharge of the jury on the first indictment. NOTE.-See People vs. Webb, 38 Cal., p. 467. This section was so changed as to obviate the difficulties which seemed to require the rendition of the decision in the case here cited. 1113. (§ 381.) The Court may direct the jury to jury when be discharged where it appears that it has not juris it has not jurisdiction, etc. Proceedings, if jury for want of diction of the offense, or that the facts charged in the indictment do not constitute an offense punishable by law. 1114. (§ 382.) If the jury is discharged because discharged the Court has not jurisdiction of the offense charged jurisdiction in the indictment, and it appears that it was committed out of the jurisdiction of this State, the defendant must be discharged. of offense committed ont of the State. Proceedings in such case, when offense committed in the State 1115. (§§ 383, 384.) If the offense was committed within the exclusive jurisdiction of another county of this State, the Court must direct the defendant to be committed for such time as it deems reasonable, to await a warrant from the proper county for his ar rest; or if the offense is a misdemeanor only, it may admit him to bail in an undertaking, with sufficient securities, that he will, within such time as the Court may appoint, render himself amenable to a warrant for his arrest from the proper county, and, if not sooner arrested thereon, will attend at the office of the Sheriff of the county where the trial was had, at a certain time particularly specified in the undertaking, to surrender himself upon the warrant, if issued, or that his bail will forfeit such sum as the Court may fix, to be mentioned in the undertaking; and the Clerk must forthwith transmit a certified copy of the indictment, and of all the papers filed in the action, to the District Attorney of the proper county, the ex pense of which transmission is chargeable to that county. NOTE.-See People vs. Mellon, 40 Cal., p. 648; 1116. (§§ 385, 386.) If the defendant is not ar- Same. rested on a warrant from the proper county, as provided in Section 1115, he must be discharged from custody, or his bail in the action is exonerated, or money deposited instead of bail must be refunded, as the case may be, and the sureties in the undertaking, as mentioned in that section, must be discharged. If he is arrested, the same proceedings must be had thereon as upon the arrest of a defendant in another county on a warrant of arrest issued by a magistrate. 1117. (§§ 387, 388.) If the jury is discharged because the facts as charged do not constitute an offense punishable by law, the Court must order that the defendant, if in custody, be discharged; or if admitted to bail, that his bail be exonerated; or if he has deposited money instead of bail, that the money be refunded to him, unless in its opinion a new indictment can be framed upon which the defendant can be legally convicted, in which case it may direct that the case be submitted to the same or another Grand Jury; and if the Court directs that the case be submitted anew, the same proceedings must be had thereon as are prescribed in Section 998.. NOTE. As a matter of course the order and the ground of the order are to be made a matter of record. 1118. (§ 389.) If, at any time after the evidence on either side is closed, the Court deems it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice. NOTE. See history of case in People vs. in note to Sec. 1112, ante. Webb, cited Proceeddischarged ings, if jury because the facts do not constitute an offense. When evidence on either side is closed, dry Court may to acquit. View of premises, when ordered and how conducted. Knowledge of juror to in Court, and he to be sworn as a witness. 1119. (§ 390.) When, in the opinion of the Court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of the Sheriff, to the place, which must be shown to them by a person appointed by the Court for that purpose; and the Sheriff must be sworn to suffer no person to speak or communicate with the jury, nor to do so himself, on any subject connected with the trial, and to return them into Court without unnecessary delay, or at a specified time. 1120. (§ 392.) If a juror has any personal knowlbe declared edge respecting a fact in controversy in a cause, he must declare the same in open Court during the trial. If, during the retirement of the jury, a juror declare a fact which could be evidence in the cause, as of his own knowledge, the jury must return into Court. In either of these cases, the juror making the statement must be sworn as a witness and examined in the pres ence of the parties. Jurors may be permitted to separate during trial. If kept together, oath of officer. Jury at each adjourn ment must be admon ished, etc. 1121. (§ 393.) The jurors sworn to try an indictment may, at any time before the submission of the cause to the jury, in the discretion of the Court, be permitted to separate or be kept in charge of a proper officer. The officer must be sworn to keep the jurors together until the next meeting of the Court, to suffer no person to speak to them or communicate with them, nor to do so himself, on any subject connected with the trial, and to return them into Court at the next meeting thereof. 1122. (§ 394.) The jury must also, at each adjournment of the Court, whether permitted to separate or kept in charge of officers, be admonished by the Court that it is their duty not to converse among themselves or with any one else on any subject con nected with the trial, or to form or express any opin- · ion thereon until the cause is finally submitted to them. ings when becomes per- juror unable to perform his duties. 1123. (§ 395.) If, before the conclusion of the Proceedtrial, a juror becomes sick, so as to be unable to form his duty, the Court may order him to be discharged. In that case a new juror may be sworn and the trial begin anew, or the jury may be discharged and a new jury then or afterwards impaneled. 1124. (§ 396.) The Court must decide all ques- Court to tions of law which arise in the course of a trial. NOTE.-An Act of the Legislature, passed between the commission of the crime and the death of the person on whom the crime was perpetrated, which declares all offenses then committed to be punishable under the law in existence at the date of the Act, is valid and binding. People vs. Gill, 6 Cal., p. 637; see, also, Secs. 3, 6, ante; and ample note to Sec. 1102, ante, and cases there cited. The next section makes libel an exception. decide questions of law arising dring trial. indictmont 1125. (§ 397.) On the trial of an indictment for on libel, the jury have the right to determine the law and the fact. for libel, jury to determine law and fact. NOTE.-State Const., Art. I, Sec. 9, Political Code, Appendix. 1126. (§ 398.) On the trial of an indictment for any other offense than libel, questions of law are to be decided by the Court, questions of fact by the jury; and, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the Court. NOTE.-See note to Secs. 1093, Subd. 6, ante, and 1127, post; People vs. Anderson, recent case, and cited elsewhere in this Chapter, on the question of reading law to jury.-July Term, 1872 (No. 2655). In all other to decide cases Court questions of law. 1127. (§§ 399, 400, 401.) In charging the jury, Charging the Court must state to them all matters of law neces the jury. |