to its form or substance, or in order to hold the defendant for a higher offense, without a judgment or acquittal, it is not an acquittal of the same offense. 1880-19.

1022. Whenever the defendant is acquitted, on the merits, he is acquitted of the same offense, notwithstanding any defect in form or substance in the indictment or information on which the trial was had. 1880-19.

1023. When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment or information, the conviction, acquittal, or jeopardy is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information. 1880-45.

1024. If the defendant refuses to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered. 1880-19.

1025. When a defendant who is charged in the indictment or information with having suffered a previous conviction, pleads either guilty or not guilty of the offense for which he is indicted or informed against, he must be asked whether he has suffered such previous conviction. If he answers that he has, his answer I must be entered by the clerk in the minutes of the court, and must, unless withdrawn by consent of the court, be conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings. If he answers that he has not, his answer must be entered by the clerk in the minutes of the court, and the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty, or in case of a plea of guilty, by a jury impaneled for that purpose. The refusal of the defendant to answer is the equivalent to a denial that he has suffered such previous conviction. In the case the defendant pleads not guilty and answers that he has suffered the previous conviction, the charge of the previous conviction must not be read to the jury, nor alluded to on the trial. 1905-733.

CHAPTER V.

Transmission of Certain Indictments from the County Court to the District Court or Municipal Criminal Court of San Francisco.

1029. Judge Superior Court, in

dicted, proceedings.

1029. When an indictment is found or an information filed in a superior court against a judge thereof, a certificate of that fact must be transmitted by the clerk to the governor, who shall thereupon designate and direct a judge of the superior court of another county to preside at the trial of such indictment or information, and hear and determine all pleas and motions affecting the defendant thereunder before and after judgment. 1880-6.

CHAPTER VI.

Removal of Action Before Trial.

1033. When action may be removed.

1034. Application for removal. 1035. Application when granted. in custody.

1036. Order of removal,
1037. Proceedings, if defendant
is in custody.

1038. Court, where removed, pro-
ceedings.

1033. A criminal action may be removed from the court in which it is pending on application of the defendant, on the ground that a fair and impartial trial cannot be had in the county. 1905-695.

1034. The application for removal must be made in open court, and in writing, verified by the affidavit of the defendant, a copy of which application must be served upon the district attorney at least one day prior to the hearing of the application. At the hearing the district attorney may serve and file such counteraffidavits as he may deem advisable. Whenever the affidavit of the defendant shows that he cannot safely appear in person to make such application because popular prejudice is so great as to endanger his personal safety, and such statement is sustained by other testimony, such application may be made by his attorney, and must be heard and determined in the absence of the defendant, notwithstanding the charge then pending against him be a felony, and he has not at the time of such application been arrested or given bail, or been arrainged, or pleaded or demurred to the indictment or information. 1905-695.

1035. If the court be satisfied that the representations of the applicant are true, an order must be made transfering the action to the proper court of some convenient county free from a like objection. 1887-62.

1036. The order of removal must be entered upon the minutes, and the clerk must immediately make out and transmit to the court to which the action is removed a certified copy of the order of removal record, pleadings, and proceedings in the action, including the undertakings for the appearance of the defendant and of the witnesses.

1037. If the defendant is in custody, the order must direct his removal, and he must be forthwith removed by the sheriff of the county where he is imprisoned, to the custody of the sheriff of the county to which the action is removed.

1038. The court to which the action is removed must proceed to trial and judgment therein as if the action had been commenced in such court. If it is necessary to have any of the original pleadings or other papers before such court, the court from which the action is removed must at any time, upon application of the district attorney or the defendant, order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being retained.

CHAPTER VII.

The Mode of the Trial

1041. Issues of fact defined. 1042. How tried.

1041. An issue of facts arises:

1. Upon a plea of not guilty.

2.

1043. Presence of defendant, when necessary.

Upon a plea of a former conviction or acquittal of the same offense.

3. Upon a plea of once in jeopardy. 1880-45.

1042. Issues of fact must be tried by jury, unless a trial by jury be waived in criminal cases not amounting to felony, by the consent of both parties expressed in open court and entered in its minutes. In cases of misdemeanor the jury may consist of twelve, or any number less than twelve upon which the parties may agree in open court. 1880-5.

1043. If the prosecution be for a felony, the defendant must be personally present at the trial; but if for misdemeanor, the trial

may be had in the absence of the defendant; if, however, his presence is necessary for the purpose of indentification, the court may, upon application of the district attorney, by an order or warrant, require the personal attendance of the defendant at the trial. 1880-19.

CHAPTER VIII.

Formation of the Trial Jury and the Calendar of Issues for the

Trial.

1046. Formation of trial jury. 1047. Clerk to prepare calendar. 1048. Order of disposing of

issues.

1049. Defendant entitled to two davs for trial.

1046. Trial juries for criminal actions are formed in the same manner as trial juries in civil actions.

1047. The clerk must keep a calendar of all criminal actions pending in the court, enumerating them according to the date of the filing of the indictment or information, specifying opposite the title of each action whether it is for a felony or a misdemeanor, and whether the defendant is in custody or on bail. 1880-20.

1048. The issues on the calendar must be disposed of in the following order, unless for good cause the court shall direct an action to be tried out of its order:

1. Prosecutions for felony, when the defendant is in custody. 2. Prosecutions for misdemeanor, when the defendant is in custody.

bail.

3. Prosecutions for felony, when the defendant is on bail. Prosecutions for misdemeanor, when the defendant is on 1880-20.

4.

1049. After his plea, the defendant is entitled to at least two days to prepare for trial.

CHAPTER IX.

Postponement of the Trial.

1052. Postponement, when.

1053. Substitution of Judges.

1052. When an action is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial be postponed to another day. 1880-20.

1053. If after the commencement of the trial of a criminal action or proceeding the judge shall die, become ill, or for any other reason be unable to proceed with the trial, any other judge of the superior court in and for the county, or city and county, in which the case is pending may proceed with and finish the trial; or, if there be no other judge of such superior court, then the clerk or sheriff shall adjourn the court and continue the case from day to day, until such time as the governor shall designate a judge of the superior court from some other county to proceed with and complete the trial, or until such time as, by stipulation in writing between the district attorney and the attorney for the defendant, filed with the clerk, a judge shall be agreed upon by them to complete said trial. The judge authorized by the provisions of this section to proceed with and complete the trial shall have the same power, authority and jurisdiction as if the trial had been commenced before such judge. 1911-365.