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Court may

arrest

judgment without

motion.

Effect of arresting

jurisdiction shall be in either county. By Sec. 246 (Code Sec. 959, ante), it is declared that an indictment shall be sufficient, if it can be understood therefrom, among other things, that the offense was committed at some place within the jurisdiction of the Court. It appears from this indictment that the defendant then and there being in the county in which the indictment was found, then and there burned the dwelling house of Keeton. If, as is contended, the defendant may have been in one county, and the house in another, and more than five hundred yards distant from the boundary thereof, still the act, the effects of which were seen in the burning, must have been committed in the county in which he was. But if this were so, the offense was committed in part in that county, and the Court had jurisdiction. We think the indictment in the respect named sufficient, and that the demurrer was properly overruled. A variance in the name of the insurance company given in the indictment for arson, to defraud, and that proved, is not ground for arrest of judgment.— People vs. Hughes, 29 Cal., p. 257; People vs. Schwartz, 32 Cal., p. 165.

1186. (§ 443.) The Court may also, on its own view of any of these defects, arrest the judgment without motion.

NOTE. As an instance wherein the Court will act of its own motion, see the case of The People vs. Hodges, 27 Cal., p. 340, cited in preceding note. An order granting a motion in arrest of judgment on account of alleged defects in the indictment, after judgment, is not an appealable order.-People vs. Ah Kim, Oct. Term, 1872 (No. 3278); People vs. Clark (No. 3101), Jan. Term, 1872.

1187. (§ 445.) The effect of allowing a motion judgment. in arrest of judgment is to place the defendant in the same situation in which he was before the indictment was found.

Defendant, when to be held or

discharged.

1188. (§ 446.) If, from the evidence on the trial, there is reason to believe the defendant guilty, and a new indictment can be framed upon which he may be convicted, the Court may order him to be recommitted to the officer of the proper county, or admitted to bail anew, to answer the new indictment. If the evidence

shows him guilty of another offense, he must be committed or held thereon, and in neither case shall the verdict be a bar to another prosecution or indictment. But if no evidence appears sufficient to charge him with any offense, he must, if in custody, be discharged; or if admitted to bail, his bail is exonerated; or if money has been deposited instead of bail, it must be refunded to the defendant; and the arrest of judgment shall operate as an acquittal of the charge upon which the indictment was founded.

TITLE VIII.

OF JUDGMENT AND EXECUTION.

CHAPTER I. The judgment.

II. The execution.

CHAPTER I.

THE JUDGMENT.

SECTION 1191. Appointing time for judgment.

1192. Upon plea of guilty, Court must determine degree.

1193. Presence of defendant.

1194. When defendant in custody, how brought before the

Court for judgment.

1195. How brought before the Court when on bail.

1196. Bench warrant to issue.

1197. Form of bench warrant.

1198. Warrant, how served.

1199. Arrest of defendant.

1200. Arraignment of defendant for judgment.

1201. What cause may be shown against the judgment.
1202. If no cause shown, judgment to be pronounced.
1203. Court may summarily inquire into circumstances in
aggravation or mitigation of punishment.

1174

Appoint-
ing time for

judgment.

Upon plea

of guilty,

determine

SECTION 1204. Proof of former conviction, or of facts, etc., in mitiga-
tion, etc., how made.

1205. Duration of imprisonment on judgment to pay a fine.
1206. Judgment to pay a fine constitutes a lien.
1207. Entry of judgment and judgment roll.

1191. (§§ 447, 448.) After a plea or verdict of guilty, or after a verdict against the defendant, on a plea of a former conviction or acquittal, if the judg ment is not arrested or a new trial granted, the Court must appoint a time for pronouncing judgment, which must be at least two days after the verdict, if the Court intend to remain in session so long; or if not, as remote a time as can reasonably be allowed. But in no case can the judgment be rendered in less than six hours after the verdict.

NOTE.-People vs. Thompson, 4 Cal., p. 238; People vs. Noll, 20 id., p. 164; People vs. King, 28 id., p. 265. The Court may, in the absence of the defendant, set a day for pronouncing sentence.-People vs. Galvin, 9 Cal., p. 115.

1192. Upon a plea of guilty of a crime distin

Court must guished or divided into degrees, the Court must, before passing sentence, determine the degree.

degree.

Presence of
defendant.

NOTE.-See Sec. 189, ante. It is not necessary that the determination of the Court should be expressed in any particular form.-People vs. Noll, 20 Cal., p. 164. The proceeding under this section is not a trial, nor has the defendant any right to have the ques tion involved determined by a jury. Nor is it necessary, in this proceeding, that the examination of witnesses should be on the same day as the entry of the plea; nor that any time should elapse between the determination and judgment.-People vs. Noll, 20 Cal., p. 164. In Re Brown, 32 Cal., p. 48, the defendant had pleaded guilty to an indictment for murder, which did not specify the degree. The Court imposed a sentence of confinement in the State Prison. Held, that the judgment was not a nullity, for the presumption was that the Court, by testimony, ascertained the degree.

1193. (§ 449.)

For the purpose of judgment, if the conviction is for felony, the defendant must be per

sonally present; if for a misdemeanor, judgment may be pronounced in his absence.

NOTE.-Upon a conviction for felony, it is necessary that the defendant should be present when judgment is pronounced; but the Court may, in the absence of the defendant, fix the day for pronouncing judgment.People vs. Galvin, 9 Cal., p. 115. A Judge who did not preside at the trial may, if legally presiding at the time fixed, pronounce the judgment.-People vs. Henderson, 28 Cal., p. 465.

defendant

1194. ($ 450.) When the defendant is in custody, When the Court may direct the officer in whose custody he is to bring him before it for judgment, and the officer

must do so.

1195. (§ 451.) If the defendant has been discharged on bail, or has deposited money instead thereof, and does not appear for judgment when his personal appearance is necessary, the Court, in addition to the forfeiture of the undertaking of bail, or of the money deposited, may direct the Clerk to issue a bench warrant for his arrest.

how

in custody, brought

before the Court for judgment.

How before the

brought

Court when

on bail.

warrant to

issue.

1196. (§ 452.) The Clerk, on the application of Bench the District Attorney, may, at any time after the order, whether the Court be sitting or not, issue a bench warrant into one or more counties.

1197. (§ 453.) The bench warrant must be sub- Form of stantially in the following form:

COUNTY OF

The People of the State of California, to any Sheriff,
Constable, Marshal, or Policeman in this State:

A. B., having been on the day of

eighteen hundred and

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A. D.

duly convicted in the County Court (or District Court, or Municipal Court, as the case may be) of the County of - of the crime

of (designating it generally), you are therefore commanded forthwith to arrest the above named A. B., and bring him before that Court for judgment; or if the Court has adjourned for the term, that you deliver him into the custody of the Sheriff of the County

of

bench warrant.

Given under my hand, with the seal of said Court

Warrant, how served

Arrest of defendant.

Arraignment of do

judgment.

affixed, this

and

day of

By order of the Court.

[SEAL.]

A. D. eighteen hundred

E. F., Clerk.

NOTE.-Stats. 1863, p. 161, Sec. 18.

1198. (§ 454.) The bench warrant may be served in any county in the same manner as a warrant of arrest, except that when served in another county it need not be indorsed by a magistrate of that county.

1199. (§ 455.) Whether the bench warrant is served in the county in which it was issued or in another county, the officer must arrest the defendant and bring him before the Court or commit him to the officer mentioned in the warrant, according to the command thereof.

1200. (§ 456.) When the defendant appears for fendant for judgment he must be informed by the Court, or by the Clerk, under its direction, of the nature of the indictment and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.

What

cause may be shown against the judgment.

1201. (§ 457.) He may show, for cause against the judgment:

1. That he is insane; and if, in the opinion of the Court, there is reasonable ground for believing him to be insane, the question of insanity must be tried as provided in Chapter VI, Title X, Part II of this Code. If, upon the trial of that question, the jury find that he is sane, judgment must be pronounced, but if they find him insane, he must be committed to the State Lunatic Asylum until he becomes sane; and when notice is given of that fact, as provided in Section 1372, he must be brought before the Court for judgment;

2. That he has good cause to offer, either in arrest

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