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SECTION 1430. Issue, how tried.

1431. Change of venue, when granted.

1432. Upon change of venue, papers, etc., must be transmitted. Proceedings on change of venue.

1433. Postponement of the trial.

1434. Defendant to be present.

1435. Jury trial, when to be demanded. Formation of the jury. 1436. Challenges.

1437. Oath of jurors.

1438. Trial, how conducted.

1439. Court to decide questions of law, but not to charge in respect to matters of fact.

1440. Jury may decide in court, or retire. Oath of officer on their retirement.

1441. Verdict of jury, how delivered and entered.

1442. Verdict, when several defendants are tried together.
1443. Jury, when to be discharged without a verdict.
1444. If discharged, defendant may be tried again.
1445. Proceedings on plea of guilty or on conviction.
1446. Judgment of fine may direct imprisonment.
1447. Defendant, on acquittal, to be discharged.
prosecutor pay costs.

1448. Judgment against prosecutor for costs.
1449. Judgment, when to be rendered.

Order that

1450. When defendant may move for a new trial or in arrest of

judgment.

1451. New trial, grounds of.

1452. Grounds of motion in arrest of judgment.

1453. Judgment to be entered in the minutes.

1454. If judgment of acquittal or imposing a fine only, defendant

to be discharged.

1455. Judgment of imprisonment, how executed.

1456. Judgment that defendant be imprisoned until he pay a fine, how executed.

1457. Fines, disposition of.

1458. Defendant may be admitted to bail.

1459. Subpoenas.

1460. Entitling affidavits.

1461. "Police courts" defined.

1426. All proceedings and actions before a justice's or police court, for a public offense of which such courts have jurisdiction, must be commenced by complaint under oath, setting forth the offense charged with such particulars of time, place, person, and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint.

1. Complaint, When Sufficient.-See San Francisco v. Randall, 54

Cal. 408.

1427. If the justice of the peace, or police justice, is satisfied therefrom that the offense complained of has been committed, he must issue a warrant of arrest, which must be substantially in the following form:

COUNTY OF

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

Complaint upon oath having been this day made before me (justice of the peace or police justice, as the case may be), by C. D., that the offense of (designating it generally) has been committed, and accusing E. F. thereof; you are therefore commanded forthwith to arrest the above-named E. F. and bring him before me forthwith, at (naming the place).

Witness my hand and seal at

A. D.

.

this

1. Arrest, What Constitutes.-Sec. 834, n. 1.

2. Arrest, How Made.-Sec. 835, n. 2; 842, n. 1.

3. Arrest by Peace Officer.-Sec. 836, n. 1, 2.

4. Arrest by Private Person.-Sec. 837, n. 1, 2.

day of

A. B.

5. Arrest by Oral Order of Magistrate.-Sec. 838, n. 1.

6. Duty of Officer or Person Making Arrest.-Secs. 847, 848.

7. Warrant of Arrest, Form of.-Sec. 814.

1428. A docket must be kept by the justice of the peace, or police justice, or by the clerk of the courts held by them, if there is one, in which must be entered each action and the proceedings of the court therein.

1429. The defendant may make the same plea as upon an indictment, as provided in section ten hundred and sixteen. His plea must be oral, and entered in the minutes. If the defendant plead guilty, the court may, before entering such plea or pronouncing judgment, examine witnesses to ascertain the gravity of the offense committed; and if it appear to the court that a higher offense has been committed than the offense charged in the complaint, the court may order the defendant to be committed or admitted to bail, to answer any indictment which may be found against him by the grand jury, or any information which may be filed by the district attorney. [Amendment, approved April 9, 1880; in effect immediately.

1430. Upon a plea other than a plea of guilty, if the parties waive a trial by jury, and an adjournment or change of venue is not granted, the court must proceed to try the case [Amendment, approved February 25, 1880; in effect immediately.

1. Jury Trial, how Waived.-Sec. 1435.

1431. If the action or proceeding is in a justice's court, a change of the place of trial may be had at any time before the trial commences:

1. When it appears from the affidavit of the defendant that he has reason to believe, and does believe, that he can not have a fair and impartial trial before the justice about to try the case, by reason of the prejudice or bias of such justice, the cause must be transferred to another justice of the same or an adjoining township.

2. When it appears from affidavits that the defendant can not have a fair and impartial trial, by reason of the prejudice of the citizens of the township, the cause must be transferred to a justice of a township where the same prejudice does not exist.

1. Bias or Prejudice of Justice.-In courts of record the bias or prej udice of a judge has been held not to constitute any legal incapacity to sit on the trial of a cause, nor to be a sufficient ground to authorize a change of the place of trial. People v. Williams, 24 Cal. 31; People v. Shuler, 28 Id. 490; People v. Mahoney, 18 Id. 180. But this is not applicable in its full extent to justices' courts; and change of place of trial may be had on account of bias or prejudice of the justice. Error of judge in previous trial is not evidence of bias or prejudice. People v. Williams, 24 Id. 31; People v. Shuler, 28 Id. 490.

2. Prejudice of the Community.-Before a defendant is entitled to a change of the place of trial, by reason of the prejudice of the citizens against him, it is not sufficient that it appear by affidavit that an impartial jury can not be obtained from a certain portion of the county. People v. Baker, 1 Cal. 403. The fact that the sheriff or his deputies may be prejudiced against defendant is no legal or sufficient ground for changing the place of trial. People v. Shuler, 28 Id. 490. The fact that thirty or forty persons in the community have contributed small sums to defray the cost of employing counsel to assist in the prosecution of a criminal action, does not show such a general prejudice of the citizens of the county as to entitle the defendant to a change of the place of trial. People v. Graham, 21 Id. 261. See sec. 1033, n. 1.

3. Affidavits, on which a motion to change the place of trial in a criminal case is founded, must state the facts and circumstances from which the conclusion is deduced that a fair and impartial trial can not be had in the county in which the indictment was found. A statement in general terms that a fair and impartial trial can not be had, or a statement that the deponent verily believes that a fair and impartial trial can not be had on account of popular excitement and false reports, is insufficient. People v. McCauley, 1 Cal. 379. Upon an application in a criminal case to change the place of trial, on the ground that a fair and impartial trial can not be had in the county where the prisoner was indicted, it is insufficient to state in the affidavit that a jury can not be selected from a certain portion of the county who would give the prisoner a fair and impartial trial. People v. Baker, 1 Id. 403. It would seem that the affidavit of defendant alone, without other evidence, is insufficient to entitle him to a change of venue. People v. Graham, 21 Id. 261.

The affidavits filed in support of the motion should be definite, and should state facts or circumstances from which the court may justly infer that a fair trial can not be had. The mere opinion or belief of affiants that defendant can not have a fair trial is insufficient. People v. Yoakum, 53 Cal. 566; People v. Congleton, 44 Id. 95. See sec. 1034, n.

4. Discretion in Granting or Refusing Change of Venue.-See People v. Congleton, 44 Cal. 95; People v. Yoakum, 53 Id. 566; People v. Mahoney, 18 Id. 186.

1432.' When a change of the place of trial is ordered, the justice must transmit to the justice before whom the trial is to be had all the original papers in the cause, with a certified copy of the minutes of his proceedings; and upon receipt thereof, the justice to whom they are delivered must proceed with the trial in the same manner as if the proceeding or action had been originally commenced in his court.

1. Transfer of Records, etc., of the Action.-Sec. 1036.

2. Duty of Court on Receipt of Records. -Sec. 1038.

1433. Before the commencement of a trial in any of the courts mentioned in this chapter, either party may, upon good cause shown, have a reasonable postponement thereof.

1. Postponement of Trial.-Sec. 1052, n.

1434. The defendant must be personally present before the trial can proceed.

1. Presence of Defendant at the Trial.-Sec. 1043, n. 1. If an indictment be for misdemeanor, the defendant may appear and plead by attorney, and the trial may be had in his absence. People v. Ebner, 23 Cal. 158; People v. Budd, 6 Pac. C. L. J. 450.

2. Right of Defendant to Appear in Person.-See Const. Cal., art. I, sec. 13. People v. Harrington, 42 Cal. 165.

1435. A trial by jury may be waived by the consent of both parties, expressed in open court and entered in the docket. The formation of the jury is provided for in chapter one, title three, part one, of the Code of Civil Procedure. [Amendment, approved February 25, 1880; in effect immediately.

1. Constitutional Provision. -A trial by jury may be waived in all criminal cases not amounting to felony, by the consent of both parties, expressed in open court. In cases of misdemeanor, the jury may consist of twelve, or of any number less than twelve upon which the parties may agree in open court. Const. Cal., art. I, sec. 7.

1436. The same challenges may be taken by either party to the panel of jurors, or to any individual juror, as on the trial of an indictment for a misdemeanor; but the challenge must in all cases be tried by the court.

1. Challenge, What is.-Sec. 1055, n. 1.

2. General Causes of Challenge.-Sec. 1072.

3. Particular Causes of Challenge.-Sec. 1073.

4. Number of Peremptory Challenges. -Sec. 1070.

5. Challenge to Individual Juror.-Sec. 1067.

6. Challenge to the Panel.-Sec. 1058.

1437. The court must administer to the jury the following oath: "You do swear that you will well and truly try this issue between the people of the state of California and A. B., the defendant, and a true verdict render according to the evidence."

1438. After the jury are sworn, they must sit together and hear the proofs and allegations of the parties, which must be delivered in public, and in the presence of the defendant.

1. Conduct of the Trial.-Sec. 1093 and notes.

2. Presence of Defendant at the Trial.-Sec. 1434, n. 1, 2.

1439. The court must decide all questions of law which may arise in the course of the trial, but can give no charge with respect to matters of fact.

1. Questions of Law.-Secs. 1124, n. 1, 1126, n.

2. Court must Declare the Law.-Sec. 1093, subdivision 6, n.

3. Duty of Court in Charging the Jury.-Sec. 1127.

4. Instructions.-Sec. 1127, n. 1.

5. Questions of Fact.-Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law. Const. Cal., art. VI, sec. 19.

1440. After hearing the proofs and allegations, the jury may decide in court, or may retire for consideration. If they do not immediately agree, an officer must be sworn to the following effect: "You do swear that you will keep this jury together in some quiet and convenient place; that you will not permit any person to speak to them, nor speak to them yourself, unless by order of the court, or to ask them whether they have agreed upon a verdict; and that you will return them into court when they have so agreed, or when ordered by the court." 1. Deliberations of the Jury.-Sec. 1128.

1441. The verdict of the jury must in all cases be general. When the jury have agreed on their verdict, they must deliver it publicly to the court, who must enter, or cause it to be entered, in the minutes.

1. General Verdict.-Sec. 1151, n. 1.

2. Verdict of Guilty.-Sec. 1151, n. 2.

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