to answer. [Amendment, approved April 9, 1880; in effect immediately.

1396. If an indictment is found, or information filed, the corporation may appear by counsel to answer the same. If it does not thus appear, a plea of not guilty must be entered, and the same proceedings had thereon as in other cases. [Amendment, approved April 9, 1880; in effect immediately.

1397. When a fine is imposed upon a corporation on conviction, it may be collected by virtue of the order imposing it, by the sheriff of the county, out of its real and personal property, in the same manner as upon an execution in a civil action.

CHAPTER X.

ENTITLING AFFIDAVITS.

SECTION 1401. Affidavits defectively entitled, valid.

1401. It is not necessary to entitle an affidavit or deposition in the action, whether taken before or after indictment or information, or upon an appeal; but if made without a title, or with an erroneous title, it is as valid and effectual for every purpose as if it were duly entitled, if it intelligibly refer to the proceeding, indictment, information, or appeal in which it is made. [Amendment, approved April 9, 1880; in effect immediately.

CHAPTER XI.

ERRORS AND MISTAKES IN PLEADINGS AND OTHER PROCEEDINGS.

SECTION 1404. When not material.

1404. Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.

1. Immaterial Errors.-The failure of the clerk to read the indictment to the jury, and to state defendant's plea, is not fatal error, it appearing that the jury were, from the first, fully informed of the precise charge against defendant, and of the issue raised by his plea of not guilty. People v. Sprague, 53 Cal. 491. The irregularity of receiving the verdict without first calling over the names of the jurors, does not prejudice defendant, if the jury were all present, and had agreed. People v. Rodundo, 44 Id. 538. A failure to record the written verdict before it is read and assented to by the jury, and the jury discharged, though an irregularity, is not fatal to the judgment. People v. Gilbert, 6 Pac. C. L. J. 968. The fact that a technical error was committed by the court during a criminal trial is not of itself

enough to produce a reversal of the judgment, but it must be such an error as produced an injury to the substantial rights of defendant. People v. Brotherton, 47 Id. 388. See also People v. Colby, 54 Id. 37; People v. Swenson, 49 Id. 388.

CHAPTER XII.

DISPOSAL OF PROPERTY STOLEN OR EMBEZZLED.

SECTION 1407. When it comes into the custody of the peace officer he must hold it subject to the order of the magistrate.

1408. Order for its delivery to owner.

1409. When it comes into the custody of the magistrate he must

deliver it to owner.

1410. Court in which trial is had may order its delivery.

1411. If not claimed in six months to be delivered to county

treasurer.

1412. Receipt by officers for money, etc., taken from a person

arrested for a public offense.

1413. Duties of persons having charge of police offices in incorporated cities or towns.

1407. When property, alleged to have been stolen or embezzled, comes into the custody of a peace officer, he must hold it subject to the order of the magistrate authorized by the next section to direct the disposal thereof.

1408. On satisfactory proof of the ownership of the property, the magistrate before whom the information is laid, or who examines the charge against the person accused of stealing or embezzling it, must order it to be delivered to the owner, on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property.

1409. If property stolen or embezzled comes into custody of the magistrate, it must be delivered to the owner on satisfactory proof of his title, and on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate.

1410. If the property stolen or embezzled has not been delivered to the owner, the court before which a trial is had for stealing or embezzling it may, on proof of his title, order it to be restored to the owner.

1411. If the property stolen or embezzled is not claimed by the owner before the expiration of six months from the conviction of a person for stealing or embezzling it, the magistrate or other officer having it in custody must, on the payment of the necessary expenses incurred in its preservation, deliver it to the county treasurer, by whom it must be sold and the proceeds paid into the county treasury.

1412. When money or other property is taken from a defendant, arrested upon a charge of a public offense, the officer taking it must at the time give duplicate receipts therefor; specifying particularly the amount of money or the kind of property taken; one of which receipts he must deliver to the defendant, and the other of which he must forthwith file with the clerk of the court to which the depositions and statement are to be sent. When such property is taken by a police officer of any incorporated city or town, he must deliver one of the receipts to the defendant, and one, with the property, at once to the clerk or other person in charge of the police office in such city or town.

1413. The clerk in, or person having charge of, the police office in any incorporated city or town, must enter in a suitable book a description of every article of property alleged to be stolen or embezzled, and brought into the office or taken from the person of a prisoner, and must attach a number to each article, and make a corresponding entry thereof.

CHAPTER XIII.

REPRIEVES, COMMUTATIONS, AND PARDONS.

SECTION 1417. Power of the governor to grant reprieves, commutations, and pardons.

1418. His power in respect to convictions for treason. Duty of the legislature in such cases.

1419. Governor to communicate to the legislature reprieves, commutations, and pardons.

1420. Report of case, how and from whom required.

1421. Notice to district attorney of application for pardon.

1422. Publication of notice.

1423. When two preceding sections are not applicable.

1417. The governor has power to grant reprieves, commutations, and pardons, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to the regulations provided in this chapter.

1. Definitions.-A reprieve is a temporary suspension of the execution of a sentence to punishment; it is a respite from the penalty. A commutation is the substitution of a less onerous punishment for the original one. A pardon is a permanent discharge of defendant from the penal consequences of his crime. The term "amnesty" is nowhere used in this code. It is defined as being an act of the sovereign power which extinguishes the offense as to all participators, and declares that the government will not consider the thing done punishable; hence it operates in favor of all persons involved in it, whether intended and specified or not.

2. Constitutional Provisions.-The above and the next succeeding sec tion are taken almost verbatim from the constitution. Const. Cal., art. VII, sec. 1. As to power of the president to grant pardons, see U. S. Const., art.

II, sec. 2.

3. Pardoning Power. The pardoning power, whether exercised under the federal or state constitution, is the same in its nature and effect as that exercised by the representatives of the English crown in this country in colonial times. People v. Bowen, 43 Cal. 439; United States v. Wilson, 7 Pet. 159; Ex parte Wells, 18 How. 307. Pardon may be granted before trial. Com. v. Hitchman, 46 Pa. St. 357. The pardon may be granted after the offender has suffered the punishment adjudged for his crime. People v. Bowen, 43 Cal. 439. United States v. Jones, 2 Wheel. C. C. 451. The pardoning power has no limitations except those found in the constitution and statutes. It may be exercised at any time. Ex parte Garland, 4 Wall. 380.

4. Conditional Pardon. Where the condition of the pardon is that the defendant shall leave the state, and he either does not leave, or, having left, returns, the original sentence revives, and may be enforced. Flavel's case, 8 Watts & S. 197; State v. Chancellor, 1 Strob. 347; People v. Potter, 1 Park. C. C. 47; Ex parte Wells, 18 How. (U. S.) 307. But if the time for departure is specified in the pardon, it will not begin to run during sickness or incapacity. People v. James, 2 Cai. 57. A pardon with a condition precedent does not operate until the condition is performed. Flavel's case, 8 Watts & S. 197.

5. Effect of Pardon.-A pardon is to be construed favorably to the convict; it not only relieves from punishment, but clears the pardoned from the guilt of the offense. Ex parte Hunt, 5 Eng. (Ark.) 284. It removes from the offender the disability to testify where such disability follows conviction of a felony. People v. Bowen, 43 Cal. 439. A pardon with a condition precedent does not operate until the condition is performed. Flavel's case, 8 Watts & S. 197. But see Ex parte Hunt, 5 Eng. 284.

1418. He may suspend the execution of the sentence, upon a conviction for treason, until the case can be reported to the legislature at its next meeting, when the legislature may either pardon, direct the execution of the sentence, or grant a further reprieve; provided, that neither the governor nor the legislature shall have power to grant pardons or commutations of sentence in any case where the convict has been twice convicted of felony, after the first day of January, 1880, unless upon the written recommendation of a majority of the judges of the supreme court. [Amendment, approved February 18, 1880; in effect immediately.

1. Constitutional Provisions-Sec. 1417, n. 2.

1419. He must, at the beginning of every session, communicate to the legislature each case of reprieve, commutation, or pardon, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon, or reprieve, and the reasons for granting

the same. [Amendment, approved February 18, 1880; in effect immediately.

1. Constitutional Provisions.-Sec. 1417, n. 2.

1420. When an application is made to the governor for a pardon, he may require the judge of the court before which the conviction was had, or the district attorney by whom the action was prosecuted, to furnish him, without delay, with a statement of the facts proved on the trial, and of any other facts having reference to the propriety of granting or refusing the pardon.

1421. At least ten days before the governor acts upon an application for a pardon, written notice of the intention to apply therefor, signed by the person applying, must be served upon the district attorney of the county where the conviction was had, and proof, by affidavit, of the service must be presented to the governor.

1422. Unless dispensed with by the governor, a copy of the notice must also be published for thirty days from the first publication, in a paper in the county in which the conviction was

had.

1423. The provisions of the two preceding sections are not applicable:

1. When there is imminent danger of the death of the person convicted or imprisoned;

2. When the term of imprisonment of the applicant is within ten days of its expiration.

TITLE XI.

OF PROCEEDINGS IN JUSTICES' AND POLICE COURTS AND APPEALS TO SUPERIOR COURTS.

CHAPTER I. PROCEEDINGS IN JUSTICES' AND POLICE COURTS,

§§1426-1461.

II. APPEALS TO SUPERIOR COURTS, §§1466-1470.

CHAPTER I.

PROCEEDINGS IN JUSTICES' AND POLICE COURTS.

SECTION 1426. Proceedings must be commenced by complaint.

1427. When warrant of arrest must issue. Form of warrant. 1428. Minutes, how kept.

1429. The plea, and how put in.