sary for their information. Either party may present to the Court any written charge and request that it be given. If the Court thinks it correct and pertinent, it must be given; if not, it must be refused. Upon each charge presented and given or refused, the Court must indorse and sign its decision. If part be given and part refused, the Court must distinguish, showing by the indorsement what part of the charge was given and what part refused.

NOTE, Instructions asked, having no application, though correct, may be refused.-People vs. Roberts, 6 Cal., p. 214. When instructions are refused, because similar instructions are already given, the refusal may mislead the jury, unless the ground of the refusal is stated in the hearing of the jury.-People vs. Hurley, 8 Cal., p. 390; see, also, People vs. Ramirez, 13 Cal., p. 172; People vs. King, 27 Cal., p. 507. If the instruction asked, on a point already included in instructions given, is not in language clear and explicit, the ground of the refusal not being stated in the hearing of the jury, will not be error.-People vs. Hobson, 17 Cal., p. 424. Instructions deemed necessary, either from the course of the argument or to prevent injustice because not offered prior to argument, may be given by the Court, or those of the Court already given may be properly explained.-People vs. Sears, 18 Cal., p. 635. Not error to refuse to give such as are already given.-People vs. Kelly, 28 Cal., p. 423; People vs. Strong, 30 Cal., p. 151. Irrelevant instructions may be refused without error.-People vs. Juarez, Cal., p. 380. To the same effect as to others refused on a point already instructed on.-See People vs. Williams, 32 Cal., p. 280. Unless clearly covered by those given, an instruction on the part of the defendant should not be refused, nor should a District Attorney object to them. People vs. Lachanais, 32 Cal., p. 433; see note to Sec. 1102, ante, and Sec. 1093, Subd. 6, and note, and therein of oral instructions.

1128. (§ 402.) After hearing the charge, the jury may either decide in Court or may retire for deliberation. If they do not agree without retiring, an officer must be sworn to keep them together in some private and convenient place, and not to permit

any person to speak to or communicate with them, nor to do so himself, unless by order of the Court, or to ask them whether they have agreed upon a verdict, and to return them into Court when they have so agreed, or when ordered by the Court.

defendant

appears

for trial

he may be

1129. (§ 403.) When a defendant who has given When bail appears for trial, the Court may, in its discretion, on bail at any time after his appearance for trial, order him to be committed to the custody of the proper officer committed of the county, to abide the judgment or further order of the Court, and he must be committed and held in custody accordingly.

NOTE.-And this may be done, notwithstanding bail may have been taken, or directed to be taken, by the Supreme Court, or a Justice thereof. This note is suggested by the recent Tip McLaughlin case, in the Sixth District Court, for Sacramento County. It would seem to be the proper course to pursue in all cases where there is affixed a capital punishment to the crime for which the defendant is about to be tried. It would appear strange for a defendant to be able, by the forfeiture of bail, to avoid the extreme penalty of the law. If payment of the bail bond would suffice, the very rich might never be punished.

1130. If the District Attorney fails to attend at

the trial, the Court must appoint some attorney at law to perform the duties of the District Attorney on such

trial.

NOTE.-Stats. 1851, p. 187, Sec. 5.

If District fails to

Attorney

attend,

Court may

appoint.

SECTION 1135. Room and accommodations for the jury after retire

ment, how provided.

1136. Accommodations for jury when kept together.
1137. What papers the jury may take with them.

Room and accommo

dations for

the jury after retire

ment, how

provided.

Accommodations for jury when kept together.

What papers the jury may take with them.

SECTION 1138. If after retirement may return into Court for informa

tion.

1139. If juror after retirement become sick, etc., jury to be

discharged.

1140. Not to be discharged for any other cause, unless there is no reasonable probability that they can agree. 1141. When jury discharged or prevented from giving a verdict, cause to be again tried.

1142. Court may adjourn during absence of jury, but deemed open for all purposes connected with cause.

1143. Final adjournment discharges jury.

1135. (§ 404.) A room must be provided by the Supervisors of each county for the use of the jury, upon their retirement for deliberation, with suitable furniture, fuel, lights, and stationery. If the Supervisors neglect, the Court may order the Sheriff to do so, and the expenses incurred by him in carrying the order into effect, when certified by the Court, are a county charge.

NOTE.-See "Other county charges," Political Code Cal., Sec. 4344, Subd. 3.

1136. (§ 405.) While the jury are kept together, either during the progress of the trial or after their retirement for deliberation, they must be provided by the Sheriff, at the expense of the county, with suitable and sufficient food and lodging.

1137. (§§ 406, 407.) Upon retiring for deliberation, the jury may take with them all papers (except depositions) which have been received as evidence in the cause, or copies of such public records or private documents given in evidence as ought not, in the opinion of the Court, to be taken from the person having them in possession. They may also take with them the written instructions given, and notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person.

NOTE. It heretofore rested in the discretion of the Court to permit the jury to take the instructions with

them to the jury room. It was frequently cause for
their return to inquire in regard to the instructions;
hence the necessity and propriety of the change.

retirement

1138. (§ 408.) After the jury have retired for If after deliberation, if there is any disagreement between may return

into Court

them as to the testimony, or if they desire to be for infor/874

informed on any point of law arising in the cause, they must require the officer to conduct them into Court. Upon being brought into Court, the information required must be given in the presence of, or after notice to, the District Attorney and the defendant or his counsel.

NOTE. The defendant in cases of felony should be present on all such occasions, and his attorney should be present or have notice to appear. The notice should also be given in cases of misdemeanor.-See Sec. 1148, and note to Sec. 1181, post, Subd. 1. It is a fatal error for a jury to return into Court and receive instructions in the absence of defendant's attorney, or without proof of notice to him of their return, when they have retired, under instructions of the Court, to deliberate upon their verdict.-People vs. Trim, 37 Cal., p. 274. And this is so though the defendant was present in person.-Id.

mation.

after

become

1139. ($409.) If, after the retirement of the jury, If juror one of them be taken so sick as to prevent the con- retirement tinuance of his duty, or any other accident or cause occur to prevent their being kept for deliberation, the jury may be discharged.

sick, etc.
discharged.

jury to be

Not to be

discharged

for any

other

1140. (§ 410.) Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open Court, unless by con- reasonable

sent of both parties, entered upon the minutes, or unless, at the expiration of such time as the Court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.

NOTE.-Under the ruling of the Supreme Court in the case of The People vs. Webb, 38 Cal., p. 467, it was claimed in The People vs. Tip. McLaughlin, on

unless
there is no

probability

that they

can agree.

When jury discharged

or prevented

a verdict.

cause to be

habeas corpus (not yet published, but decided in the year 1871), that a discharge of the jury against the objection of the defendant operated as an acquittal; but the Supreme Court did not so hold. They, however, admitted the defendant to bail, and subsequently the Court below, on the conviction of the defendant, declined to commit him because the Supreme Court had admitted him to bail. This latter act was certainly error.

1141. (§ 411.) In all cases where a jury are discharged or prever ted from giving a verdict by reason from giving of an accident or other cause, except where the defendant is discharged from the indictment during the progress of the trial or after the cause is submitted to them, the cause may be again tried at the same or another term.

again tried.

Court may adjourn during

absence of jury, but deemed

NOTE.-See note to Sec. 1181, post.

1142. (§ 412.) While the jury are absent the Court may adjourn from time to time, as to other business, but it must nevertheless be open for every purpose connected with the cause submitted to the jury with cause. until a verdict is rendered or the jury discharged.

open for all purposes connected

Final adjournment

1143. (§ 413.) A final adjournment of the Court discharges discharges the jury.

jury.

CHAPTER IV.

THE VERDICT.

SECTION 1147. Return of jury.

1148. Appearance of defendant.

1149. Manner of taking verdict.

1150. Verdict may be general or special.

1151. General verdict.

1152. Special verdict.

1153. Special verdict, how rendered.

1154. Form of special verdict.

1155. Judgment on special verdict.

1156. When special verdict defective, new trial to be ordered.

1157. Jury to find degree of crime.