SECTION 1158. Jury may find upon charge of previous conviction. 1159. Jury may convict of lesser offense, or of attempt. 1160. Verdict as to some defendants, and another trial as to others. 1161. In what cases Court may direct a reconsideration of 1162. When judgment may be given on informal verdict 1164. Recording the verdict. 1165. Defendant, when to be discharged or detained after acquittal. 1166. Proceedings upon general verdict of conviction or a jury. 1147. (§ 414.) When the jury have agreed upon Return of their verdict they must be conducted into Court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried at the same, or another term. ance of 1148. (§ 415.) If indicted for a felony, the defend- Appearant must, before the verdict is received, appear in per- defendant. son. If for a misdemeanor, the verdict may be rendered in his absence. taking 1149. (§ 416.) When the jury appear they must Manner of be asked by the Court, or Clerk, whether they have verdict. agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same. may be special. 1150. (§ 417.) The jury may render a general Verdict verdict, or, when they are in doubt as to the legal general or effect of the facts proved, they may, except upon an indictment for libel, find a special verdict. verdict. 1151. (§ 418.) A general verdict upon a plea of Generale! not guilty is either "guilty" or "not guilty," which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or acquittal of the same offense, it is either "for the people" or "for the defendant." NOTE.-If a general verdict of guilty is rendered, it is a conviction on every material allegation charged in the indictment, and if the indictment is for murder, so is the verdict; but if the jury intend a conviction of a lesser offense than the principal offense charged but necessarily included in it, the offense of which the jury so intended to find the defendant guilty must be specified.-People vs. March, 6 Cal., p. 543. On an indictment for murder, the verdict must specify whether it is of the first or second degree, and if it does not the Court ought to order the jury to make the specific finding.— People vs. Marquis, 15 Cal., p. 38. A recommendation to mercy is improperly stated in the verdict, as it is addressed to the Court; but being no part of the verdict does not vitiate it, and it is not error for the Court to direct the verdict, without the recommendation, to be recorded.--People vs. Lee, 17 Cal., p. 16. It is the duty of the jury to determine the degree of guilt, and, though the indictment charge murder in the second degree, it was held that the jury might find a verdict of guilty of murder in the first degree.-People vs. Nichol, 34 Cal., p. 211. Under an indictment for "an assault with intent to commit murder," a verdict of the jury "guilty of an assault with intent to do bodily injury," is a conviction of a simple assault only.People vs. Vanard, 6 Cal., p. 562; but see People vs. English, 30 Cal., p. 214, where it was held that a judgment for a felony was sustained by such a verdict, with the addition in the verdict that the assault was "with a deadly weapon." Verdict does not cure the defects of an indictment.-People vs. Wallace, 9 Cal., p. 30. A verdict is conclusive as to the venue having been proved when it reads "guilty as charged in the indictment," and the indictment charges the place.-People vs. Magallones, 15 Cal., p. 426. Verdict acquitting defendant of forging and uttering indorsement on an instrument is not an estoppel upon any matter aliunde.— People vs. Frank, 28 Cal., p. 507. To find one guilty who is not named in the indictment is finding the one named not guilty.-People vs. Ah Ye, 31 Cal., p. 451. But entitling the cause in the case as originally named in the indictment, when the true named was discovered and used on the trial, is not vital error, and judgment is sustained against the true defendant.-People vs. Ah Kim, 34 Cal., p. 189. If defendant is not present when verdict. 1152. (§ 419.) A special verdict is that by which Special the jury find the facts only, leaving the judgment to the Court. It must present the conclusions of fact as established by the evidence, and not the evidence to prove them, and these conclusions of fact must be so presented as that nothing remains to the Court but to draw conclusions of law upon them. NOTE.-A Court may not direct a jury to find a certain verdict, either special or general, but may, on request, instruct them as to their right to find either.People vs. Antonio, 27 Cal., p. 404. verdict, rendered. 1153. (§ 420.) The special verdict must be re- Special duced to writing by the jury, or in their presence how entered upon the minutes of the Court, read to the jury and agreed to by them, before they are discharged. NOTE.-See note to Sec. 1151, ante, and 1181, post, and notes. special 1154. (§ 421.) The special verdict need not be Form of in any particular form, but is sufficient if it present verdict. intelligibly the facts found by the jury. 1155. (§ 422.) The Court must give judgment Judgment upon the special verdict as follows: 1. If the plea is not guilty, and the facts prove the defendant guilty of the offense charged in the indictment, or of any other offense of which he could be convicted under that indictment, judgment must be given accordingly. But if otherwise, judgment of acquittal must be given. 2. If the plea is a former conviction or acquittal of the same offense, the Court must give judgment of acquittal or conviction, as the facts prove or fail to prove the former conviction or acquittal. on special verdict. NOTE.-Subd. 1.-See note to Sec. 1151, ante, and cases there cited. See, also, note to Sec. 1016, ante, Subd. 2, and cases there cited. A defendant may be found guilty of any offense necessarily included within that charged in the indictment. As an example, manslaughter in an indictment for murder.-People vs. English, 30 Cal., p. 214. See cases cited elsewhere in the preceding chapter, and note to Sec. 1102, ante. Of an assault with a deadly weapon with the intent to do great bodily harm, under an indictment for an assault with a deadly weapon with intent to do murder.-People vs. Congleton, July Term, 1872 (No. 3382); People vs. Jacobs, 29 Cal., p. 579; People vs. Davidson, 5 Cal., p. 133; Ex Parte Ah Cha, 40 id., p. 426; People vs. Vanaid, 6 Cal., p. 562; People vs. English, 30 Cal., p. 214. A verdict "guilty of an assault with a deadly weapon with intent to do bodily harm on the person of A. F. Murphy," is equivalent to the language of the statute, "assault with a deadly weapon * with intent to inflict on the person of another a bodily injury."-Secs. 217, 220, ante (old 50). "To do bodily harm upon the person of another," is certainly to “inflict upon the person of another a bodily injury.” The modes of expression are of the same import.-People vs. Congleton, July Term, 1872 (No. 3382). Subd. 2.-See Sec. 1016, ante, Subd. 3 and note, with cases there cited. 1156. (§ 423.) If the jury do not, in a special verdict, pronounce affirmatively or negatively on the facts necessary to enable the Court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact, from the evidence, as estab lished to their satisfaction, the Court must order a new trial. 1157. Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty. NOTE.-Stats. 1856, p. 219, Sec. 2. In The People vs. Campbell, October Term, 1870 (40 Cal., p. 137), the Court say: "On the trial the jury rendered a verdict finding him guilty of the crime charged in the indictment," and recommended him to the mercy of the Court, but did not specify the degree of murder of which they found him guilty. The defendant moved an arrest of judgment, on the ground that the verdict DIFFERENT COUNTS.-Prosecution cannot be required 1158. Whenever the fact of a previous conviction is charged in an indictment, the jury, if they find a verdict of guilty, must also find whether or not the defendant had suffered such previous conviction. NOTE. This is made necessary by Secs. 666, 667, ante, punishing second offenses more severely than the first. convict of offense, or of attempt. 1159. (§ 424.) The jury may find the defendant Jury may guilty of any offense, the commission of which is lesser necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense. NOTE.-See note to Sec. 1155, ante, and note to Subd. 1 thereof; also, Sec. 1157, and note, ante. 1160. (§ 425.) On an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to. the others may be ་ tried by another jury. 1161. (§§ 426, 427.) When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to recon Verdict as to some and trial as to In what cases Court a reconsid eration of the verdict. |