5. That the indictment contains any matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.

14,005. Demurrer, how put in, and its form.

SEC. 1005. The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the indictment, or it must be disregarded.

14,006. When heard.

SEC. 1006. Upon the demurrer being filed, the argument upon the objections presented thereby must be heard, either immediately or at such time as the court may appoint.

14,007. Judgment on demurrer.

SEC. 1007. Upon considering the demurrer, the court must give judgment, either allowing or disallowing it, and an order to that effect must be entered upon the minutes.

14,008. If allowed, bar to another prosecution, when.

SEC. 1008. If the demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the case to be resubmitted to the same or another grand jury.

14,009. If resubmission not ordered, defendant discharged, etc.

SEC. 1009. If the court does not direct the case to be resubmitted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he has deposited money instead of bail, the money must be refunded to him.

14,010. Proceedings, if submission ordered.

SEC. 1010. If the court directs that the case be resubmitted, the same proceedings must be had thereon as are prescribed in sections 997 and 998. 14,011. Proceedings, if demurrer disallowed.

SEC. 1011. If the demurrer is disallowed, the court must permit the defendant, at his election, to plead, which he must do forthwith, or at such time as the court may direct. If he does not plead, judgment may be pronounced against him.

14,012. When objections, forming ground of demurrer, must or may be taken.

SEC. 1012. When the objections mentioned in section 1004 appear upon the face of the indictment, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, or after the trial, in arrest of judgment.

SEC. 1016. There are three kinds of pleas to an indictment. A plea of: 1. Guilty;

2. Not guilty;

3. A former judgment of conviction or acquittal of the offense charged, which may be pleaded either with or without the plea of not guilty.

14,017. Plea, how put in, and its form.

SEC. 1017. Every plea must be oral, and entered upon the minutes of the court in substantially the following form:

1. If the defendant plead guilty, "The defendant pleads that he is guilty of the offense charged in this indictment."

2. If he plead not guilty, "The defendant pleads that he is not guilty of the offense charged in this indictment.

3. If he plead a former conviction or acquittal, "The defendant pleads that he has already been convicted (or acquitted) of the offense charged in this indictment by the judgment of the court of (naming it), rendered at (naming the place), on the

day of

14,018. Plea of guilty, how put in, and when it may be withdrawn.

SEC. 1018. A plea of guilty can be put in by the defendant himself only in open court, unless upon indictment against a corporation, in which case it may be put in by counsel. The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted. 14,019. What plea of not guilty puts in issue.

SEC. 1019. The plea of not guilty puts in issue every material allegation of the indictment.

14,020. What may be given in evidence under plea of not guilty.

SEC. 1020. All matters of fact tending to establish a defense other than that specified in the third subdivision of section 1016 may be given in evidence under the plea of not guilty.

14,021. What is not a former acquittal.

SEC. 1021. If the defendant was formerly acquitted on the ground of variance between the indictment and the proof, or the indictment was dismissed upon an objection to its form or substance, or in order to hold the defendant, for a higher offense, without a judgment of acquittal, it is not an acquittal of the same offense.

14,022. What is a former acquittal.

SEC. 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 on which the trial was had.

14,023. Conviction or acquittal on indictment for higher offense.

SEC. 1023. When the defendant is convicted or acquitted upon an indictment, the conviction or acquittal is a bar to another indictment 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.

14,024. Defendant refusing to answer, plea of not guilty to be entered.

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

14,025. Previous conviction-Issue on question, how made and tried.

SEC. 1025. When a defendant, who is charged in the indictment with having suffered a previous conviction, pleads either guilty or not guilty of the offense for which he is indicted, he must be asked whether he has suffered such previous conviction. If he answers that he has, his answer shall be entered by the clerk in the minutes of the court, and shall, 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 answer that he has not, his answer shall be entered by the clerk in the minutes of the court, and the question whether or not he has suffered such previous conviction, shall 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 refusual of the defendant to answer is equivalent to a denial that he has suffered such previous con

viction. In case the defendant pleads "not guilty," and answers that he has suffered the previous conviction, the charge of the previous conviction shall not be read to the jury, nor alluded to on the trial. [New section, approved March 30, 1874; Amendments 1873-4, 439; took effect July 1, 1874.

CHAPTER V.

TRANSMISSION OF CERTAIN INDICTMENTS FROM THE COUNTY COURT TO THE DISTRICT COURT OR MUNICIPAL CRIMINAL COURT OF SAN FRANCISCO.

14,028. Transmission of indictment from county to district courts.

SEC. 1028. When an indictment is found in the county court for treason, misprision of treason, murder, or manslaughter, it must be transmitted by the clerk to a district court of the county for trial, except when the indictment is found against a person holding the office of district judge. [Amendment, approved March 30, 1874; Amendments 1873-4, 440; took effect July 1, 1874.(*) 14,029. Indictments against county judge to be transmitted.

SEC. 1029. All indictments found against a county judge must also be transmitted to a district court of the county for trial. [Amendment approved, March 30, 1874; Amendments 1873-4, 440; took effect July 1, 1874.()

14,030. Indictments to be transmitted to the municipal criminal court of San Francisco.

SEC. 1030. All indictments found in the county court of the city and county of San Francisco must be transmitted by the clerk to the municipal criminal court of the city and county of San Francisco, except those against the judge of the last-mentioned court and those triable in the district court.

CHAPTER VI.

REMOVAL OF THE ACTION BEFORE TRIAL.

14,033. When action may be removed.

SEC. 1033. A criminal action, prosecuted by indictment, may be removed from the court in which it is pending on the application of the defendant, on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending.

14,034. Application for removal, how made.

SEC. 1034. The application must be made in open court, and in writing, verified by the affidavit of the defendant, a copy of which must be served on the district attorney at least one day before the application is made. ever the affidavit shows that the defendant cannot safely appear in person to make the application, because the popular excitement against him is so great as to endanger his personal safety, and such statement is sustained by other testimony, the application may be made by counsel, and heard and determined in the absence of the defendant, though he is indicted for felony, and has not at the time of such application been arrested, or given bail, or been arraigned, or pleaded or demurred to the indictment.

14,035. Application, when granted.

SEC. 1035. If the court is satisfied that the representation of the defendant is true, an order must be made for the removal of the action to the proper court of a county free from a like objection.

14,036. Order of removal.

SEC. 1036. The order of removal must be entered upon the minutes, and the

(a) The original section, instead of " “. court," had the words "the district court."

district

(b) The original section, instead of "a district court," had the words "the district court."

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.

14,037. Proceedings on removal, if defendant is in custody.

SEC. 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.

14,038. Authority of court to which action is removed.

SEC. 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.

2. Upon a plea of a former conviction or acquittal of the same offense. 14,042. How tried.

SEC. 1042. Issues of fact must be tried by jury.

14,043. When presence of defendant is necessary on the trial.

SEC. 1043. If the indictment is 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 identification, the court may, upon application of the district attorney, by an order or warrant, require the personal attendance of the defendant at the trial.

CHAPTER VIII.

FORMATION OF THE TRIAL JURY AND THE CALENDAR OF ISSUES FOR TRIAL.

14,046. Formation of trial jury.

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

14,047. Clerk to prepare a calendar.

SEC. 1047. The clerk must prepare a calendar of all criminal actions pending in the court, enumerating them according to the date of the filing of the indictment, 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.

14,048. Ordering of disposing of issues on the calendar.

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

1. Indictments for felony, when the defendant is in custody;

2. Indictments for misdemeanor, when the defendant is in custody;

3. Indictment for felony, when the defendant is on bail;

4. Indictment for misdemeanor, when the defendant is on bail. [Amendment, approved March 30, 1874; Amendments 1873-4, 440; took effect July 1, 1874.(a) 14,049. Defendant entitled to two days to prepare for trial.

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

CHAPTER IX.

POSTPONEMENT OF THE TRIAL.

14,052. Postponement, when may be ordered.

SEC. 1052. When an indictment is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day of the same, or of the next term. [Amendment, approved March 30, 1874; Amendments 1873-4, 441; took effect July 1, 1874.(b)

TITLE VII.

Of Proceedings after the commencement of the Trial and before Judgment.

CHAPTER I. CHALLENGING THE JURY

II. THE TRIAL .....

14,055 14,093

III. CONDUCT OF THE JURY AFTER CAUSE IS SUBMITTED TO THEM.. 14,135

14,055. Definition and division of challenges.

SEC. 1055. A challenge is an objection made to the trial jurors, and is of two kinds:

1. To the panel;

2. To an individual juror.

14,056. Defendants cannot sever in challenges.

SEC. 1056. When several defendants are tried together they cannot sever their challenges, but must join therein.

14,057. Panel defined.

SEC. 1057. The panel is a list of jurors returned by a sheriff, to serve at a particular court or for the trial of a particular action.

14,058. Challenge to the jury defined.

SEC. 1058. A challenge to the panel is an objection made to all the jurors returned, and may be taken by either party.

14,059. Upon what founded.

SEC. 1059. A challenge to the panel can be founded only on a material depar

(a) The original section, instead of "unless for good cause," had the words "unless upon the application of either party, for good cause shown, by affidavit and upon two days' notice to the opposite party, with service

of a copy of the affidavit in support of the applica tion."

(b) The original section, after the word "cause" and before" direct," had the words "shown by affidavit."